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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Philip v. Ryan & Ors [2004] IEHC 77 (11 March 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/77.html Cite as: [2004] IEHC 77

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THE HIGH COURT

Record Number: 2002 No. 15012P

Between:

David Philp

Plaintiff

And

Peter Ryan and Bon Secours Hospital Bon Secours Health System

Defendants

Judgment of Mr Justice Michael Peart delivered the 11^th day of March 2004:

On the 26th June 2001 plaintiff was admitted to the Bon Secours Hospital in Cork, having been referred to that hospital by his general practitioner. The admission notes for that date indicate that this was an acute admission and that the plaintiff complained at that

time of being unable to pass urine since the previous day and of abdominal pain. Under the the heading "history of present complaints", it is noted that the plaintiff had "intermittent problem with the urinary symptoms since one year - frequency ++, nocturia +, no urgency , feeling of incomplete evacuation, hesitancy +, flow poor, haematuria."

These notes also indicate that on examination he was found to have no fever, and to have lower abdominal pain and that his abdomen was distended.

These admission notes also contained the following note: "p/r - moderately enlarged prostate". This means that following a rectal examination the plaintiff was found to have a moderately enlarged prostate.

When the plaintiff was referred to that hospital by his general practitioner, Dr.Motherway on that 26th June 2001, he brought with him a letter from Dr. Motherway which indicated that the plaintiff's complaints consisted of being "almost fully urinary obstructed", and that a rectal examination had indicated that the prostate was "extra-sensitive and firm".

The evaluation sheet for the 26th June 2001 shows that the plaintiff was admitted to the ward with urinary retention, and was awaiting the first named defendant, Mr Ryan. It would appear from those notes that a urethral catheter was inserted in order to evacuate the bladder, and that this process was satisfactory, although it was noted that there was some mild irritation caused by the catheter, and that there were large amounts of blood and traces of protein found to be in the urine when a urinalysis was carried out.

These notes indicate that on 26th June 2001, the patient was seen by Mr Ryan, the first named defendant at 6:15pm. The notes for that visit indicate that a PSA test was ordered, and that a supra pubic catheter was to be inserted under local anaesthetic. This procedure appears to have been carried out on 29th June 2001, on which occasion a cystoscopy was also performed by Mr Ryan. The plaintiff remained in hospital for some days following this procedure and was discharged from hospital on 2nd July 2001. The clinical notes made by Mr Ryan in respect of the 2nd July 2001 indicate that he was to see the plaintiff again in two weeks' time, which would be 16th July 2001.

It appears from a report dated 2nd July 2001 from Dr. Carmody, in respect of an I.V. Pylogram X-ray that it was noted "there is elevation of the base of the bladder consistent with prostatic hypertrophy". This means that prostatic enlargement was noted by Dr. Carmody.

A pathology report in respect of a urine sample collected on 27th June 2001 indicates that there was "no bacterial growth". This comment assumes some importance as we shall see later, since the absence of bacterial growth would virtually eliminate the chances of a correct diagnosis of the plaintiff's complaints being prostatitis.

Significantly also, a pathology report on a sample collected on 29th June 2001 indicated a PSA level of 168. This is a significantly raised level of PSA, and can be indicative of

prostate cancer. More will be said about this test later. The report on this sample is dated 3rd July 2001.

Prior to his discharge from hospital on 2nd July 2001 the plaintiff was instructed on the use of the supra pubic catheter while at home for the purpose of evacuating his bladder, and while the hospital notes indicate that the plaintiff was to be seen again at the outpatients department on the 16th July 2001, he appears to have been seen in fact by Mr Ryan at the outpatients department on the 12^th July 2001. This meeting on the 12^th July 2001 is of great importance in this case.

12th July 2001 Meeting:

It is a pity that there is such a paucity of objective or independent information as to what conversation took place between Mr Ryan and the plaintiff on the occasion of the plaintiff's visit to the hospital on 12th July 2001. The clinical notes attached to the admission form for the Plaintiff on that date are completely blank. Mr Ryan's own clinical notes as opposed to a hospital's clinical notes, as originally completed by him, read simply "ROC at OPD today". I am told that this means "removal of catheter at outpatients department today".

It has emerged from Mr Ryan's own evidence that after he received a letter from the plaintiff's solicitors in December 2002, he in fact altered his clinical notes for 12th July 2001 by adding, on the lines immediately below his original note, a note to the effect that he planned to see the plaintiff in December 2001 and he was to have a further PSA Test carried out in six weeks time.

There has been much debate during this case as to the reason why Mr Ryan would have altered his own clinical notes some 17 months later. The plaintiff suggests that the reason is that he wished to make his clinical notes appear to confirm a certain account of that meeting which would be more favorable to himself if it were true. Mr Ryan on the other hand has said that he wished his clinical notes to reflect the true fact of what happened at that meeting according to his own recollection. I will return to this aspect of the case at a later stage, but I should say even at this stage that Mr Ryan has accepted completely that it was a most improper act on his part to alter his clinical notes in the way he did.

The plaintiff's account of his meeting with Mr Ryan on 12th July 2001 was that he was told that he had an infection and that he was to take antibiotics for this, and that he was given a prescription for 90 days of antibiotics and was told that these would cure the infection. The plaintiff stated that he was a bit surprised by this since he had normally only ever taken antibiotics for a period of five to seven days. He stated in his evidence that he mentioned that 90 days was rather a long time but that Mr Ryan told him that the antibiotic in question was "like a designer drug" and that it takes a while to penetrate the muscle in order to cure the infection. The plaintiff stated that Mr Ryan had definitely not mentioned anything about a PSA Test and that it was simply was not true that he had been told to have a repeat PSA test done in six weeks' time. In fact he did not remember the words "PSA" or "PSA test" being mentioned at all in June or July 2001. He also stated that at that time he did not even know what a PSA test was, and that the first occasion on which he became aware of what a PSA test was, was in March 2002 when his doctor in Saudi Arabia explained it to him.

Following that visit on 12^th July 2001, Mr Ryan appears to have written a letter to Dr. Motherway, who was the plaintiff's GP and who had referred the plaintiff to Mr Ryan initially. Strangely, but presumably just through some typographical error, the letter bears the date the 10^th July 2001, which is two days prior to the visit, so it cannot be correct. But that letter outlines what was done in relation to the insertion of a urethral catheter, and that this was later changed to a suprapubic catheter "on the basis that the underlying diagnosis might well be acute prostatitis". He also states that the Serum PSA level was found to be 168.18ng/ml, and that this result supports the diagnosis of acute prostatitis. Mr Ryan then states the following to Dr. Motherway:

"He is due to return to the Middle East in the near future and I am going to arrange that he has a serum PSA repeated in about six weeks time. I have also arranged to review him when he returns in about five months time. If the raised PSA is simply due to prostatitis, the level should return to normal in due course although this can be quite a slow process in patients with prostatitis.

I shall be in touch again regarding his progress."

Shortly after the visit of 12th July 2001, the plaintiff was due to return to Saudi Arabia where he worked at that time, and he stated in evidence that when he was leaving Mr Ryan on 12th July 2001, he was given no letter of referral for any doctor in Saudi Arabia to enable him to have a further PSA test carried out, and that he received no further instructions from Mr Ryan on that occasion, except that he would see him again in December 2001 when he was back from Saudi Arabia. He stated that the purpose of seeing Mr Ryan again in December 2001 was for a follow up.

It appears that the plaintiff on that occasion also asked Mr Ryan to let him have a letter about his state of health because he wanted to give it to an airline in connection with a flight which he had needed to cancel on account of his treatment in June/July 2001. Mr Ryan duly wrote a letter dated 16th July 2001 headed "to whom it may concern" and which states as follows:

"this is to confirm that the above named man was admitted acutely into hospital under my care on 26/06/01. He was still under my care as an out-patient on 10/07/01 and was therefore unable to travel on that date. Following a routine follow-up recently, it is my opinion that he is now recovered and will be able to travel on 19/07/01."

It appears that in August 2001, after the plaintiff had returned to Saudi Arabia, he contacted Mr Ryan's Secretary in order to get another letter about his treatment in June/ July 2001. He stated that on this occasion he wanted to get a report on his condition that he could give to the company he worked for, so that the company could assess the fact that much of his holiday time had been taken up with hospital treatment and incapacitation, and he had apparently been told he could get a refund of his holiday and take his holiday time later. Mr Ryan wrote on the 21st August 2001 enclosing a medical report as he had been requested to do. That report, again, is headed "to whom it may concern" and states as follows:

"I am writing to confirm that this patient was admitted acutely to the Bon Secours Hospital, Cork on 26/06/01. His problem was acute prostatitis. He required in-patient care until on (sic) 02/07/01 and was discharged with a supra pubic catheter in situ, which would very significantly curtail his mobility and would render him unable to travel.

The supra pubic catheter was removed as an out-patient on 12/07/01 and routine follow up was arranged as an out-patient at a later date."

In his evidence, the plaintiff stated that he read this report at the time, and understood it to mean that everything was fine again, the catheter had been removed and he was passing urine normally, and that a routine follow up would be arranged. He also said that at that point in time he was feeling fine and healthy and he had no problems passing urine. He also stated in his evidence that when he telephoned Mr Ryan's Secretary for this report in August 2001, no reference whatsoever was made as to whether he had had a further PSA Test carried out. It will be recalled that Mr Ryan has stated that he asked the plaintiff to have a further PSA test carried out in six weeks' time after 12th July meeting, but the plaintiff says that he was never told to have such a further PSA Test carried out.

In relation to these two letters, Mr Ryan stated in his evidence that while obviously he realised that the plaintiff would have read these letters, he never intended them to be a communication to the patient about his medical condition. The plaintiff on the other hand submits that these letters are further evidence that as far as Mr Ryan was concerned the plaintiff was well again, thereby reinforcing his submission that the question of the plaintiff possibly having prostate cancer was never present in the mind of Mr Ryan at this time.

The plaintiff also stated in his evidence that in November 2001 he telephoned Mr Ryan's Secretary in order to make an appointment for the visit in December 2001. His appointment was a re-arranged for 13th December 2001 when he returned to Ireland from Saudi Arabia.

13^th December 2001 Meeting:

The plaintiff says that when he attended at that meeting on 13th December 2001, Mr Ryan examined him, and asked him whether he had asked him to get a PSA test done. The plaintiff says that in answer to that question he stated that he did not know what a PSA test was, and that in response to that, Mr Ryan stated that he could arrange for the plaintiff to get one done there and then, and that he wrote a out a slip of paper to take to the nurse in order to get a PSA test done. The plaintiff was adamant that Mr Ryan had never mentioned to him that he might be suffering from a serious disease and did not

express any concern that he had not had a further PSA test done in August. He also said that Mr Ryan did not tell him at this December meeting what the purpose of the PSA test was. The plaintiff also stated that he knew at that stage that he was going back to England the next day or the day after that, and that he was then going on a vacation, and that Mr Ryan told him that he could call him for the results. The plaintiff stated that he had told Mr Ryan of his plans to go to England for a short time and that he was then going to the Canaries, and that he would be back in England then for a short time before going to Saudi Arabia. He also stated that when he left Mr Ryan's surgery on the 13^th December 2001, he attributed no importance to the test results, because it was just part of a routine follow-up. He said that if he had known then what he now knew about the significance of the results of the PSA test, he would in his own words "have been hanging on the result", but that Mr Ryan had definitely not indicated to him that there was anything to be worried about.

The plaintiff acknowledges that inspite of Mr Ryan telling him that he could contact him about the results, he did not do so. He said that it did not seem to be what he described as "a big deal", and that it did not seem important and that he was flying around on holiday, and that it just slipped his mind. He also stated that Mr Ryan had a note of his address in Saudi Arabia, and that there would have been no difficulty in Mr Ryan contacting him in Saudi Arabia, because if he had the address of the company he worked with, Mr Ryan could easily have found out the telephone number where he could be contacted at.

The next matter of significance is that Mr Ryan appears to have written a letter dated 7^th January 2002 to the plaintiff at the Saudi Arabia address, but for reasons which have not been explained in any way, the plaintiff did not receive this letter until 10^th March 2002. That letter, according to Mr Ryan, was dictated by him just before the Christmas break, and that it would have been typed up by his secretary on her return from the Christmas holidays and that he would have then signed it and posted it. The envelope in which the letter was contained when the plaintiff received it was produced to the Court and for some reason bears a stamp, but no postmark, so it is not possible to establish when this letter was posted, if at all. It is possible that it was hand delivered to the address in Saudi Arabia, but the court has no evidence in this regard other than Mr Ryan's testimony that the letter was posted. The letter reads as follows:

"Further to your recent visit on 13/12/2001, I have tried to contact you on a number of occasions but there appears to be no answer at the telephone number which we have on record for you (021 4613239).

I have obtained the result of your repeat PSA test and I am quite concerned because the result shows marked elevation (PSA 227.98ng/ml). I understood that you were going to telephone my clinic to obtain the result and discuss same.

Could you please contact me at your earliest convenience so that this matter can be addressed"

The Pathology report in respect of that test indicates the result as "227.98 HH". The court was told that "HH" means "very high".

The plaintiff stated that at the meeting on 13^th December 2001 he had told Mr Ryan of his plans to go to England, then to the Canaries and then to Saudi Arabia, and that therefore there would not have been any point in Mr Ryan trying to telephone him at his Cork telephone number. According to Mr Ryan's own testimony, and this is borne out by his clinical notes, he tried to telephone the plaintiff at that Cork number on the 18^th December 2001, 19^th December 2001, 21^st December 2001, but that on each occasion there was no answer.

The plaintiff stated that when he received that letter eventually on the 10^th March 2002 he was surprised that it had taken so long to reach him, and he noticed that the stamp on the envelope had not been franked. He said that he never has any difficulty normally in being contacted in Saudi Arabia either by post or by telephone. He says that when he read the letter he totally panicked and went to see one of the GPs in the local clinic in Saudi Arabia. That GP said that he would do another PSA test to see what the level was as of that date, and that he would await those results before doing an internal examination of the prostate since such an examination can increase the PSA levels. That doctor then explained to the plaintiff that the PSA test was linked to the assessment of prostate cancer. The result of that PSA test showed a level of 327ng/ml, which was a yet further increase in the level from the 227.98ng/ml shown on the 13^th December 2001 result. This indicated that the plaintiff was suffering from a very aggressive cancer of the prostate. If the diagnosis of acute prostatitis had been correct in July 2001, it would have responded to the antibiotic treatment prescribed by Mr Ryan and the PSA levels would have returned to normal following that treatment.

A CT Scan of the plaintiff's pelvic and abdominal area was also performed, which revealed significant metastases in the abdominal and pelvic lymph nodes, and a biopsy confirmed prostate cancer with what was described as a High Gleeson score of 8. That indicates a significant growth.

On the 24^th March 2002, the plaintiff underwent in Saudi Arabia an operation known as a "bilateral orchidectomy", which is otherwise known as surgical castration. The purpose of this operation is to reduce as far as possible the production of the male sex hormone, since such hormone deprivation has the effect of reducing the enlargement of the prostate gland, and lowering the PSA levels to near normal. This operation can achieve a 90% reduction in the hormone levels, leaving another 10% which is produced in the adrenal glands, and these are dealt with by drug treatment (Flutomide and Becalutomide), in the hope of reducing the production of male hormone to near zero. In this way it is hoped that the cancer growth will regress and secondaries might not develop elsewhere in the body. These procedures are a delaying tactic in effect, because apparently the body eventually develops hormone independent cells which are resistant to treatment and these cells will eventually kill the patient.

Following this surgery the plaintiff experienced a dramatic reduction in his PSA levels and very soon had a level of 0.05ng/ml.

On the 15^th April 2002, the plaintiff returned to Cleveland in England where he came under the care of Dr. Hardman, who is a Consultant Oncologist. The plaintiff stated that Dr. Hardman had informed him that if his treatment for prostate cancer had commenced earlier, he would have a better prognosis, and would live longer. When he heard this, the plaintiff felt totally let down by Mr Ryan. He felt very angry that this treatment could have commenced in June 2001, and that what he was now facing could have been very different, and that he could have looked forward to several more years of life, whereas the prognosis was not now very good. He stated that he now looks at life on a day by day basis, and that he is now able to look forward to perhaps a year or maybe two years maximum, whereas he could have been looking at several years. He states that if the treatment had commenced earlier it would not have already spread into the lymph-nodes, which it has done, and that it might have gone into remission if it had been treated earlier.

I should say at this point that a major point of controversy in this case is the effect on a patient of delayed hormone treatment for prostate cancer. Mr Ryan and his expert witness, Mr. Murphy have stated that there is no conclusive evidence that early hormone intervention has a positive effect on a patient's prognosis, whereas the plaintiff's expert evidence is to the contrary, namely that there is evidence from studies which have been carried out that early intervention has a positive effect on prognosis. I will deal with that evidence and the academic debate concerning that question in due course. But Mr Ryan and Mr. Murphy both treat their patients on the basis that delayed hormone intervention (albeit with close observation of the patient) is preferable, and that they would normally wait until the patient had developed metastases (or secondaries) before advising hormone intervention treatment by way of bilateral orchidectomy or otherwise, because such treatment has only a certain duration of effectiveness, or "innings" as it was described during the evidence, since cells develop which are resistant to treatment, and if it is started too early, it has lost its full effectiveness by the time the patient really needs it, that is, when metastases have developed. The contrary view is that the early intervention in fact delays the onset of those metastases.

The plaintiff was of course cross-examined by Mr. Patrick Keane SC on behalf of the defendants, and it was put to the plaintiff that in fact at the meeting with Mr Ryan on the 12^th July 2001, the latter had told the plaintiff that he should have a further PSA test carried out in six weeks time, but the plaintiff was very adamant that this was not so, and that he had not simply forgotten about it. He said he had been sent back to Saudi Arabia with 90 days supply of antibiotics and that he was told that this would cure him, and accordingly there was nothing on his mind to suggest that a further PSA test had to be done. He also referred to the letter dated 16^th July 2001 which Mr Ryan had written for the purpose of a refund from the travel company and said that what was contained in that letter was consistent with his own recollection of what he had been told by Mr Ryan. In that letter Mr Ryan had stated that following routine follow-up the plaintiff was then recovered and that he was able to travel on the 19^th July. Mr. Keane put it to the plaintiff that what was said in the letter was simply that the plaintiff was by then recovered from an inability to travel. But the plaintiff says that as he read that letter it indicated that he was then recovered, and that he was able to travel. Mr. Keane put it that this letter was simply for an airline company and that it did not go into any sort of detail.

It was also suggested to the plaintiff by Mr. Keane that if Mr Ryan did in fact think that he might have prostate cancer as of the 12^th July 2001, he, the plaintiff might not have appreciated being told of that fear on that occasion, until such time as it was confirmed. The plaintiff agreed that he would not expect the doctor to frighten him needlessly about something which might not occur. He also agreed that if he had been told that he might have cancer on that date, and it turned out that he did not, that he would have been devastated about it, just as he was devastated in March 2002 when it was confirmed to him. He agreed that his life would have been miserable from July 2001 until March 2002. Mr. Keane suggested therefore that unless his life had actually been shortened by not having treatment earlier, the plaintiff in fact had the advantage of not having this worry on his mind during the nine month period from July 2001 until March 2002, but the plaintiff replied that he would rather have been aware of the facts, and would not want to bury his head in the sand and not know that there was a strong possibility of cancer. It was put to the plaintiff that if the commencement of hormone therapy in July was not going to make any difference to his life expectancy, he would have suffered a loss of enjoyment of life by being told in July that he may have cancer, compared to a situation where he learned of the cancer only in March 2002. The plaintiff replied that he did not regard that as an advantage, and would rather be in the position of knowing the facts, and making decisions regarding his life accordingly. He would have preferred to know if there was a statistical possibility that he had cancer. Mr. Keane suggested that if the school of thought which favoured delayed hormone treatment was correct, then in fact the plaintiff suffered less by not having been told he had cancer until March 2002, but the plaintiff said that he found that school of thought hard to accept. The plaintiff said again that if he knew the facts early he could start to tackle the problem then and that the subsequent months might have been easier; but that to learn of it later meant that he had fewer options open to him. The plaintiff rejected the suggestion put to him that the view he was expressing now was being expressed with the benefit of hindsight, and was not the view he would have had during the eight month period when he was free of the worry. He considers that his quality of life would have been better if he had known the true facts and he could have taken appropriate action then.

The plaintiff agreed that this view was predicated on a belief that early hormone treatment would increase his life expectancy. But he also said that whatever the effect of early intervention he would rather know the facts, irrespective of whether his life could be thereby prolonged.

Contacting re: the results of December 2001 PSA test:

In relation to the meeting between the plaintiff and Mr Ryan on the 13^th December 2001, the plaintiff was asked whether Mr Ryan had expressed surprise that he had not had a further PSA test carried out after the 12^th July meeting. He said that he did not seem surprised or concerned, and that he simply said that he had better have one done then, and that he wrote out a slip and that the test was then done. He again said that Mr Ryan had said that he could contact him for the results. He also said that he had told Mr Ryan that he was going away and that Mr Ryan had said he could call him for the results. He disagreed, when it was put to him, that Mr Ryan had said the results were important. He also denied that he had been told to make contact about the results in a few days time. When pressed on the question as to whether he was told to contact Mr Ryan for the results, the plaintiff accepted that he was "supposed" to contact Mr Ryan for the results, even though his memory of what Mr Ryan had actually said was that he "could contact him" for the results, but that there was nothing imperative about it. He was asked if he had said to the defendants' doctors, Dr. Murphy and Dr. Meagher, when they examined him this year for the purposes of this case that Mr Ryan told him to make contact about the results. Those doctors have apparently noted that he said that. The plaintiff could not say that he had not said that to them, but he did not recollect saying it to them. His recollection was simply that Mr Ryan had said he could contact him. The plaintiff does however accept that he forgot to contact Mr Ryan for the results in December 2001, but he re-iterated that Mr Ryan had not indicated that there was any importance attached to the results, and that was why he forgot to do so. He was not even aware at that time of what a PSA test was, and that if there was a chance of that test revealing that he had a cancer, he would have expected Mr Ryan to emphasis the importance of making contact for the results.

The plaintiff agreed that he could not remember giving Mr Ryan his telephone number in Saudi Arabia, but he thinks he gave the number to Mr Ryan's secretary. But he could not state as a fact that he did so. However, he said that Mr Ryan should have had no difficulty finding the number from the address details he had, if he had tried to, and he did not understand why Mr Ryan had tried to telephone him at the Cork number because he had told him that he was going away and would not be at that number. Mr. Keane put it to the plaintiff that in fact Mr Ryan had made every reasonable effort to contact him, and that Mr Ryan was not necessarily to know that there would be nobody at the Cork number with whom a message could be left. It was also suggested by Mr. Keane that Mr Ryan could not be blamed for the delay from the 7^th January 2002 until 10^th March 2002 in the letter dated 7^th January 2002 reaching him in Saudi Arabia. The plaintiff replied that he did not know who was to blame for that, but that he did not think that Mr Ryan had made sufficient efforts to contact him with the results.

The Evidence given by Mr Ryan:

The diagnosis of acute prostatitis:

Mr Ryan gave evidence of having first seen the plaintiff on the 28^th June 2001 while the plaintiff was in hospital after his admission on 26th June 2001. It was on the 28^th June 2001 that Mr Ryan formed the opinion that the plaintiff was suffering from acute prostatitis. Mr Ryan accepted in his direct evidence that on this occasion he had missed the diagnosis of prostate cancer, but went on to say that he has encountered a situation where a patient may present with an element of prostatitis superimposed upon prostate cancer, but he accepted that in the present case the diagnosis was certainly incomplete and a diagnosis of advanced prostate cancer was missed by him.

He also went on to explain in his direct evidence how he came to make the diagnosis of acute prostatitis to the exclusion of any other diagnosis. At the outset he said that making a diagnosis is not a black and white matter. He stated that he would have looked at the factors in favour of prostate cancer and the factors against, and that his opinion at the time was that "the scales tipped in favour of prostatitis". He went on to explain the nature of prostatitis and its effect on the prostate gland, and what a patient suffering from prostatitis might usually present upon examination.

He then listed a number of matters which led him to conclude that the correct diagnosis was prostatitis. These included:

•    A marked reduction in urine flow over the previous few days;

•    Acute urinary retention;

•    Frequency;

•    Dysuria;

•    The fact that Dr. Motherway had during a rectal examination noted that the prostate gland was tender;

•    The fact that Dr. Motherway during that examination had not noted that the prostate gland surface felt craggy or irregular;

•    A white cell blood count was mildly elevated and that this would not be so with prostate cancer;

•    That during a cystoscopy examination he did not observe any intra urethral bulging lobes and that this indicated to him that there was not, based on this examination, an appearance of obstruction due to advanced prostate cancer;

•    That when the plaintiff returned to see him on the 12^th July 2001, the plaintiff had gone from a situation of acute urinary retention, to a situation where his bladder was emptying itself completely;

•    Because some of the symptoms had improved he interpreted this as a response to the antibiotics which he had prescribed;

•    He took the raised PSA level of 168ng/ml on 12^th July 2001 as consistent with prostatitis because he stated that he had had cases of prostatitis where the PSA levels were markedly raised, up to a level of 90ng/ml, and that he was aware of colleagues who had seen a PSA of over 100ng/ml in prostatitis;

.He considered the following to be factors weighing against a diagnosis of prostatitis:

•    The fact that a microscopic examination of the plaintiff's mid-stream urine sample ("MSU") showed a negative culture and negative microscopy. In other words there was no infection. He accepted that he ought to have taken this into account in his diagnosis;

•    The level of the raised PSA (168ng/ml) when taken with the negative MSU microscopy should have pointed him towards a diagnosis of prostate cancer.

Mr Ryan's evidence in relation to the 12^th July 2001 meeting:

Mr Ryan stated that he could not recall this meeting with the plaintiff on the 12^th July 2001, since it was too long ago. He was asked by Mr Keane whether he believed he did or did not require the plaintiff to have a follow-up PSA test done. Mr Ryan responded as follows:

"My Lord, I cannot remember this consultation and therefore I cannot say what I said to the patient. All I can say is that it would be my routine practice. I am meticulous in the way I carry out my practice and that's what I would normally do. But no more than that or no less than that can I say."

Since he could not recall this meeting, Mr Ryan stated in his direct evidence that all he could do was say what his normal routine was in relation to patients such as the plaintiff. He stated that he very often would request such patients to have a follow-up PSA test carried out, and to make contact with him for the results. He thought that in the case of the plaintiff he asked him to have a test carried out in 6 weeks time. He stated that he considered 6 weeks to be a reasonable time for a repeat test, rather than a shorter time, since in cases of prostatitis, it can take some time for the PSA level to return to normal, and also the antibiotics which he prescribed are slow to have the necessary effect. In addition he felt that six weeks was a reasonable time, since if the patient was in fact suffering from prostate cancer, that 6 weeks period of delay would not be significant in the context of a prostate malignancy.

He was asked by Mr. Keane whether on the 12^th July 2001 he would have considered that the plaintiff might have prostate cancer. Mr Ryan stated frankly that he could not remember back to then, and all he could do was try and think what his thought processes would have been, based on his notes and letters etc. He stated:

"…certainly prostate cancer would always be in the back of a clinician's mind in this situation, my Lord, because it is one of the three possibilities that exist. But as I said earlier, I think that perhaps the possible diagnosis of prostate cancer was not quite as alive in my mind as perhaps it might have been, given the negative urine test and the height of the PSA."

But on the assumption that he did in fact ask the plaintiff to have another PSA test carried out in 6 weeks time (which the plaintiff denies was said to him), Mr Ryan said that it is not part of his routine to warn patients of the seriousness of having this test done. He said that he gets a great many patients who have a raised PSA, and that it does not mean that they have prostate cancer, and that if he were to emphasise in every case the serious possible consequences of the patient not having the test carried out, he would in effect be worrying a great many of his patients needlessly, since the raised PSA level was often accounted for by non-prostate cancer reasons. But in most cases he felt that a responsible adult patient would have the test carried out if he asked that it be carried out, and that patients generally do make contact for their results.

Mr Ryan also referred to his letter to Dr Motherway which bears the dated 10^th July 2001. He said that this date was clearly incorrect since he refers in that letter to the consultation of the 12^th July 2001. He says that his reference to the fact that he was going to arrange for the plaintiff to have a further PSA test carried out, means in fact that he had already arranged for the plaintiff to have the test carried out, and that while there was some ambiguity in the way the letter is worded, he meant in fact that he had already made those arrangements. He also referred to the fact that he mentioned in the letter the fact that the plaintiff was returning to the Middle East, and that he would not have given the plaintiff any actual letter of referral since he was not referring him to another doctor as such.

The alteration to the clinical notes:

Mr Ryan admitted in his evidence that after he received a letter from the plaintiff's solicitor in December 2002 in this case, he made an alteration to the clinical notes relating to the plaintiff. He inserted into these notes an entry for the 12^th July 2001 which indicates that he had asked the plaintiff to have a further PSA test carried out in six weeks from that date. That entry is also marked with a highlighter on the original notes. These notes were not referred to by the plaintiff in his direct examination in order to support Mr Ryan's recollection or belief that he had asked the plaintiff to have that test carried out. When the original of those notes was called for by the Court, Mr Ryan for the first time stated in evidence that in fact he had made the entry for the 12^th July 2001 only after he had received the solicitor's letter. He has explained this on the basis that it was never his intention to falsify the clinical record for that date. Rather, in December 2002, he was completely convinced that on the 12^th July 2001 he had in fact requested the plaintiff to have a further PSA test carried out, and that by altering the clinical notes to state this, he was merely making the notes conform with the actual true facts, namely that he had requested the plaintiff to have the test done. He was not, according to himself, noting something that did not in fact occur. He was making the notes more accurate. He accepts that to alter the record in the way he did was a most improper thing for him to have done, but has stated on more than one occasion that it was not his intention to mislead, but rather to correct the record so that the record actually recorded what he believed the true facts to be.

However, Mr. White on behalf of the plaintiff pursued the matter further, because it is a fact that both he and the court became aware of this alteration to the clinical notes only during Mr Ryan's cross-examination. In other words, if no question had been raised by the plaintiff's Counsel in relation to these notes, the true situation regarding the integrity of the note would have not come to light. That would indeed be a most serious situation, since the notes were part of the discovery made by Mr Ryan, and the Court had that discovery, and no doubt would be considering its contents when deliberating on the issues in this case prior to giving judgment. Mr Ryan stated that he had made a decision to inform his legal advisers of the alteration to the clinical notes about one week prior to the commencement of this hearing. Mr. Keane objected to any further question as to whether and to whom he in fact disclosed the fact of the alteration on the grounds of solicitor/client confidentiality. What is clear however is that this fact was not made known to anybody, if indeed it ever was, until very soon before this action commenced before this court. It is true that no direct evidence was led on behalf of Mr Ryan based on the altered record. In fact there appears to have been no reference to the clinical notes at all for that date in direct evidence. But the concealment by Mr Ryan of this very important fact could easily have produced a mischief of a most serious nature.

There is also the fact that by swearing and serving an affidavit of discovery in which this document is one of the documents referred to in the Schedule to that affidavit, and by not disclosing the fact of the alteration to the plaintiff at the time of service, the effect was that a false document was in circulation, in the sense that this document existed, and it is implicit that it is a correct document. In other words, there was in existence a document which, on its face, supported Mr Ryan's contention and evidence that he had told the plaintiff to have another PSA test carried out in six weeks' time. That of course was not true, in the sense that without that alteration, the same document, in its original and therefore true form, would support the plaintiff's version of that meeting.

I have absolutely no doubt that Mr Ryan acted quite improperly when he altered this clinical record. He has accepted this and has apologised, and has given his explanation as to his thinking at the time of the alteration. Given Mr Ryan's evidence in court that he has no recollection of the consultation of the 12^th July 2001, I cannot however accept his evidence that he was completely sure that, in altering that record, he was only completing the record so that it reflected the true situation. I believe on the balance of probabilities that on receipt of the solicitor's letter in December 2002 he looked at the clinical notes and in some sense of panic which must have impaired his judgment as to how to react or act, he inserted a note which he felt would assist him in his defence of what was obviously going be a claim against him. He could not have been so sure as to the fact of having told the plaintiff to have another test done, as to enable him to make that alteration without some risk of creating a false or misleading record. He has said himself that it was only in the few short weeks before this case commenced that when he sat down one weekend and thought about this case and the evidence he could give, and after he had consulted with a professional colleague in Cork, that he came to what he called the realisation that there was a possibility, however unlikely it appeared to him at that time, that he might not have actually asked the plaintiff to have had the test done in six weeks time, and that he might not in fact have made arrangements that the test be done, as indicated in the letter to Mr Motherway. It was then that he realised that the record which he had altered could not be allowed to proceed into the court, and that he, in his own words, "came forward and informed my legal team and asked for advice." He also stated that he never realised that he had the option open to him of directing his legal team to disclose the fact of the alteration of the document to the plaintiff's legal team.

There is also the fact that in a Notice to Admit Facts the plaintiff was asked to admit the fact that on the 12^th July 2001 he had been asked to have the test carried out.

In relation to this issue, I believe that Mr Ryan engaged in an effort to conceal the fact that he had no clinical note to support his contention that he requested the plaintiff to have the second test carried out. I believe this supports significantly the plaintiff's testimony that he was never asked to have such a test carried out. I also believe that Mr Ryan ought to have ensured, at least by the commencement of this hearing, that the plaintiff's legal team were made aware of the fact that the entry for the 12^th July 2001 had been inserted in December 2002. There was a heavy responsibility on him to ensure that this was done, and it is in my view reprehensible that it was not done, as it could have worked a serious mischief, leading to possible injustice to the plaintiff, depending on the significance ultimately of that entry.

Mr Ryan's evidence in relation to the meeting on 13th December 2001:

Mr Ryan stated in his evidence that when he saw the plaintiff on the 13th December 2001 he appeared to be better. His symptoms had resolved and he had no ongoing complaints. He was asked whether he made any mention to the plaintiff of PSA tests, and Mr Ryan stated that he did not have a clear recollection of that December visit but thought that he probably made some reference to the PSA test which he says the plaintiff was to have done and which he did not do. He thinks he conveyed some surprise that it was not done. It must of course be remembered that the plaintiff in his evidence stated that Mr Ryan simply asked whether he had requested that a further PSA test be done, and that when the plaintiff informed him that this had not happened, Mr Ryan simply said that he could go ahead immediately and have it done that day instead.

Mr Ryan in his evidence said that he conveyed some surprise to the plaintiff that this test had not been carried out and then arranged for such just to be carried. He also said that he asked the plaintiff to ring him for the results of that test and he referred to his clinical notes in which the words the "ring me" appear.

Efforts to contact the plaintiff:

As we now know the result of the PSA test carried out on the 13^th December 2001 was a level of 227ng/ml. This was a significant increase from the level of 168ng/ml which had shown up in July 2001. It was clear to Mr Ryan that this was in a serious deterioration in the condition. It was important that the news of this result was communicated to the plaintiff at the earliest possible opportunity since the increased level of PSA in all probability meant that the plaintiff was suffering from a radical and advanced cancer of the prostate gland. As far as Mr Ryan is concerned he had asked the plaintiff to contact him in relation to him those results. The plaintiff accepts that he was supposed to get in touch with Mr Ryan, and that he failed to do so. As it happens, the plaintiff was going away for a holiday to the Canary Islands shortly after he saw Mr Ryan on the 13^th December 2001. Mr Ryan said in his evidence that he did not recall being told of these plans. One way or another, it appears from Mr Ryan's notes, that on the 18th December 2001 he attempted to telephone the plaintiff at his Cork telephone number in order to inform him of the raised PSA level. His clinical notes in respect of 18th December 2001 indicate that there was no answer from the phone on that date. Those notes also indicate that he attempted to contact him on 19th December 2001 by telephone and again there was no answer. The notes indicate that he attempted again on the 21^st December 2001.

In his evidence, he indicated that if he had been told that the plaintiff was going away on holidays to the Canary Islands, he would not have attempted to contact him at his Cork number. Mr Ryan gave evidence that one of the last things he did before the Christmas break was to dictate a letter to the plaintiff at his address in Saudi Arabia. This is the letter to which I have already referred and which bears the date 7th January, 2002. Mr Ryan says that the letter which he had dictated just prior to the Christmas break was typed up by his secretary after the Christmas holidays, and was posted to the plaintiff. This of course is the letter which did not reach the plaintiff until 10th March 2002. Mr Ryan had some vague recollection that his secretary at some stage had indicated to him that she was having some difficulty contacting a number in Saudi Arabia. However he had no specific recollection about attempting to contact the plaintiff in Saudi Arabia by telephone, although he did admit that he was very concerned at the result of the test, and of a situation where the plaintiff was unaware of that result. However having signed and posted the letter dated 7th January 2002 to the plaintiff, it does not appear that Mr Ryan noticed the fact that the plaintiff had not contacted at him upon receipt of the letter. In fact nothing further was done by him in relation to this matter until he was contacted by Dr. Motherway in March 2002 after the plaintiff had eventually received the letter dated 7th January 2002 and after he had discovered that in fact his PSA level was by then 327 ng/ml.

It would appear that around 21st March 2002 Dr. Motherway had telephoned Mr Ryan and had left a message for him to ring him back. There is a clinical note dated 21st March 2002 indicating that Dr. Ryan tried to ring him back but got through only to an answering machine. There is a further note dated 25^th March 2002 which indicates that he rang Dr. Motherway. The clinical note of that conversation reads as follows:

"Told the situation. No problem here re: communication at our end. Most unfortunate but does not affect prognosis. Letter only reached patient a few weeks ago - offered orchidectomy - wanted advice. Pros and cons outlined."

It is not entirely clear from the first three words as to who told who about the situation. I presume from the note however on the balance of probability that it was Dr. Motherway who explained the situation which had arisen to Mr Ryan about the letter not arriving until the 10th March 2002. This would explain the note which follows, namely that there was no problem on Mr Ryan's part about communicating.

Under cross-examination Mr Ryan was asked why he would not have rung Dr. Motherway in December 2001 after the test result came in, especially in a situation where he was having difficulty contacting the plaintiff by telephone at the Cork telephone number. He said that his normal course of action in these situations is that the patient will ring in to find out the results of their test. He also said that he had never had a situation before where a patient failed to ring for results, and that in his view the appropriate response was to try and contact the patient himself. He also said he would not delegate that task to his secretary. He would ring the patient himself to give the results of such a test which might have such adverse consequences. In fact he said that the purpose of the call would be simply to ask the patient to come in and see him so that the test results could be discussed, and not to discuss them over the phone.

Mr Ryan stated that the course of action which he took, namely trying to phone the plaintiff at the Cork number, then writing to the plaintiff at the Saudi Arabia address was an appropriate way of dealing with the situation. It was suggested to Mr Ryan that he could not justify not at least contacting the plaintiff's GP when he could not get the plaintiff on the phone, and further that no form of recorded or registered post was attempted in respect of the letter dated 7th January 2002, in a situation where he had all the knowledge of the plaintiff's health situation, and the plaintiff did not. However Mr Ryan responded by saying that since the two letters which he had written to the plaintiff in August 2001 had arrived safely, he had no reason to believe that the letter dated 7^th January 2002 would not also arrive safely.

It was also suggested to Mr Ryan that if he had informed the plaintiff in July 2001 or even in December the 2001 of the significance of a raised PSA level, that the plaintiff would have telephoned him or in some way made contact for the results in December 2001. Mr Ryan agreed that this would have increased the probability that he would have done so.

Mr Ryan was also asked why when he did not receive a timely reply to the letter dated 7^th January 2002 he did not recognize that something had obviously gone wrong. Mr Ryan stated that after the letter was written the patient's file was put away, and there was no system in operation whereby it would be noticed that no response had been received. In other words, there was no system in place for tracking the file, such as diarying the file forwards so that it would become automatically known to Mr Ryan or his secretary that no response had been received. Mr Ryan accepted that with the benefit of hindsight this was not satisfactory, and in fact stated that following this particular experience, one which he said he had not encountered before (i.e. a patient not receiving a letter or making contact for a result), he now has a system in place to diary forward a file in order to track it.

An important part of Mr. White's cross-examination focused upon a document prepared by Mr Ryan for the purpose of his defence of these proceedings. It is called "Case Summary". It is one of the documents furnished to an expert called to give evidence on behalf of Mr Ryan, namely a Consultant Urologist, Mr. Michael Murphy, and, I think, to another expert who was not in fact called as a witness, even though he had prepared a report. I have not seen that latter report. The Case Summary also provided material from which the defendants' pleadings were prepared. During cross-examination on this document, Mr Ryan made a number of concessions, in effect that he could not stand over some of the matters he had stated in that document. In some respects he agreed that what he stated to be the situation was not true and was incorrect, and in other respects the matters were overstated. He agreed that in some respects the experts asked to prepare

expert reports would have relied on what was stated by Mr Ryan in the Case Summary, as the basis for what they stated in their reports as to the management of the plaintiff by Mr Ryan.

It was put to Mr Ryan, first of all, that the alteration which Mr Ryan made to the clinical notes for 12^th July 2001 to the effect that he had told the plaintiff to have a further PSA test carried out within six weeks, was an alteration made quite deliberately, as it was essential so as to put him in a position to mount one aspect of his defence, namely that he had certainly told the plaintiff to have that test carried out when he saw him on the 12^th July 2001. It is quite clearly stated by Mr Ryan in that document that he told the plaintiff that it was necessary that a repeat PSA test be done in six weeks in the Middle East in order to confirm that diagnosis, and to contact Mr Ryan with the result. He also stated in the Case Summary document that he made it quite clear to the plaintiff that this test was important in the continuing management of his condition, even though he did not place "particular emphasis on the possibility of Mr. Philp having underlying prostate cancer." Mr Ryan accepted when it was put to him, that in fact he had never mentioned the possibility of prostate cancer to the plaintiff on the 12^th July 2001. The document also referred to the fact that the reason for not placing such emphasis on prostate cancer was that he believed that there were strong indications that the plaintiff had prostatitis, and because of that he "felt that prostate cancer was only a remote possibility." It was put to him that the evidence was that he had not considered or mentioned the possibility of cancer at all, and Mr Ryan accepted that the Case Summary was inaccurate in this regard.

He was also referred to a part of the document in which he stated what factors existed which supported the diagnosis of prostatitis, and in particular to where he stated that one of the factors in favour of that diagnosis was a negative urine culture and microscopy. Mr Ryan immediately accepted that this was wrong and should not have been in the document. He accepted that the document would have caused his experts to conclude from it that he had in fact told the plaintiff to have another PSA test carried out in six weeks time. He agreed that this matter was overstated in the document and expressed regret in that regard. It was put to Mr Ryan that when that concession was coupled with his deliberate alteration of his clinical notes in respect of the 12^th July 2001 consultation, it could be seen as a conscious policy on his part to fight and defeat this case at all costs. Mr Ryan denied this categorically and stated that he believed at the time that he had told the plaintiff to have that test carried out.

Mr. White also referred to a passage in the document which he characterized as intended to turn anybody reading it against the plaintiff. That passage refers to the failure of the plaintiff to contact Mr Ryan with the result of his PSA test after six weeks, and that on 12^th December 2001 he had told the plaintiff that he was quite concerned that the plaintiff had not had the test done in August 2001, and to the fact that after the 12^th December 2001 test was carried out "once again the patient failed to make contact over the next days", and he then refers to the attempts which he made to telephone the plaintiff before Christmas and to the letter dated 7^th January 2002. The passage then states as follows:

"In summary therefore: -

1. This patient's life span has not been altered by the time interval from presentation in June 2001 until diagnosis in March 2002.

2. The initial management of this patient, given a presentation consistent with acute prostatitis, and given the risks of prostate biopsy in the presence of acute prostatitis, was appropriate.

3. The patient was given instructions 12/7/01 with regard to a follow up blood test which would, if it had been performed and the result conveyed to me as requested, raised the alarm and given rise to further investigations in August 2001. In that respect the initial factor in delayed diagnosis was caused by Mr Philp and not by myself.

4. When the patient presented 13/12/01 to me at the Cork Clinic follow up, he was told by me that there was significant concern with regard to his PSA level. A blood test was performed the same day and the patient was asked to make contact in relation to the result. If the patient had contacted me as requested for the follow up PSA result from the sample taken 13/12/01, I would have admitted him without delay and carried out further assessment including prostate biopsy and staging tests. Once again Mr. Philp failed to make contact and did not present for further follow up, either in terms of a telephone call or attendance at the Cork Clinic. I attempted to contact him on three separate occasions over three days just prior to Christmas by telephone but to no avail. I signed and dispatched a letter to the plaintiff's address in the Middle East immediately upon return from the Christmas holidays 07/01/02. The second phase in delay in diagnosis was therefore again due to the patient not following instructions as clearly requested and not paying due attention to the potential seriousness of his condition which was made clear 13/12/01.

While it is most regrettable that Mr. Philp has now got advanced prostate cancer, the fact is that had my instructions been followed, no significant delay in diagnosis would have occurred. Furthermore, of particular importance, the delay in diagnosis has not significantly affected his diagnosis in terms of life span."

Not surprisingly, in the light of the evidence given by the plaintiff, and by Mr Ryan in this case, Mr Ryan agreed that much of this was untrue and he would not stand over it.

Mr White then referred to passages from the section in his Case Summary entitled "Reply to Statement of Claim", wherein at paragraph 5 thereof he dealt with the plaintiff's claim for personal injuries and special damages as pleaded in the Statement of Claim at paragraph 5 thereof. Again this part of the Case Summary refers to Mr Ryan having instructed the plaintiff on the 12^th July 2001 to have a further PSA test done, and lays blame at the door of the plaintiff for failing to carry out that instruction. Mr. White again suggested that the alteration to the clinical notes for the 12^th July 2001 after he received the letter from the plaintiff's solicitors was necessary to support the case which he was making in his defence of the action. Mr Ryan had to accept that this document was overstated and inaccurate, and he stated that he had not expected that his Case Summary document would be produced to the plaintiff's legal team and referred to in court. Mr Ryan admitted in relation to another section of the document entitled "Particulars of Negligence and/or Breach of Contract" (a reference to that section of the plaintiff's Statement of Claim) that matters were stated in a more assertive way than they ought and were inaccurate, and that he could not stand over what was said. He accepted that all of these matters might have influenced how his own expert witnesses would have seen the management of the plaintiff during that early phase of treatment. There are several other matters in the same document which Mr Ryan conceded in cross-examination were not things which he could now stand over, and were in some instances "grossly overstated". He stated also that he had never intended to mislead the court or the expert witnesses, and that he was embarrassed to see some of the statements that he had made in the document.

The evidence of Dr. Shah:

He is in a Consultant Urologist working in London whose status as an expert is not put in issue. He was engaged by the solicitors acting for plaintiff to prepare a report for the purpose of this action in relation to whether or not there is a case of clinical negligence in relation to the management of the plaintiff by Mr Ryan. That report is dated 1^st June 2003. For the purpose of preparing that report he was furnished with a Statement of Facts, the plaintiff's medical file from Saudi Arabia, from Dr. Motherway, and from the Bon Secours Hospital, Cork. In addition he has reviewed the relevant medical literature.

In his report he outlines the history of the care which the plaintiff received after he was referred to Mr Ryan by Dr Motherway, and since those particular factual matters have already been referred to by me above, there is no need to repeat them.

Mr. Shah expressed his view that based solely upon the symptoms described in Dr. Motherway's letter of referral to the hospital namely a one year history of dysuria ( a burning sensation on passing urine), hesitancy (having to wait to pass urine) and also reduction in urine output ( his bladder was palpable indicating urinary retention), it would have been reasonable to conclude that he might be suffering from acute prostatitis. In addition, upon a digital rectal examination the prostate gland had been found to be extra-sensitive. In cases of acute prostatitis, the prostate gland is what Dr. Shah described as "exquisitely tender", and is sometimes boggy to the feel. Because of these symptoms Dr. Motherway had referred the plaintiff to hospital to be admitted as an emergency to deal with acute urinary retention.

On examination by the junior hospital doctor, the plaintiff's prostate was found to be "moderately enlarged" but there is no record in the clinical notes of the prostate being tender. He concluded that there was a benign enlargement of the prostate caused by urinary obstruction. According to Dr. Shah it is also highly significant that at this time the plaintiff's temperature was normal, and therefore did not have a fever, which one would expect him to have if he had an infection of his prostate such as prostatitis. In addition, a urine test disclosed that no significant growth of organisms. There were only four white cells and two red cells shown in his urine sample, and this was another factor which made a diagnosis of acute prostatitis incorrect. The urinary obstruction was therefore in the opinion of Dr. Shah not caused by prostatitis. He stated that it was an outflow obstruction based upon a set of symptoms that had been developing over twelve months or so, which had suddenly given rise to an acute retention of urine. These factors meant that this could not be a case of acute prostatitis. In his evidence Dr. Shah described his conclusion in this regard in the following way:

"It completely flies in the face of a diagnosis of acute prostatitis. This was not an acute prostatitis If one considers, if I may help you in this respect, acute prostatitis is a condition which is very uncommon. It is an exquisitely painful condition in which a patient will be febrile, will be shivering and shaking, will have a high fever, and you almost certainly could not do a rectal examination because if you do the patient jumps off the bed because the prostate is so tender, or can be very inflamed or enlarged The patient would be febrile, the urine would grow organisms, usually E-Coli, and there would be a lot of red, well mostly white cells in the urine. The white cells denote inflammation, because when the bladder is inflamed it sheds white cells and that is how we know that there is inflammation present and he only had four white cells, which is within the normal range So, I do not consider there is any evidence whatsoever that the patient had acute prostatitis That was not the condition."

Furthermore, in his opinion when the first PSA level came back at 168ng/ml alarm bells ought to have started ringing. He stated that for a man of 53 years of age, a normal PSA level would be less that 2.5ng/ml, whereas in a man of 75, the normal might be about 7ng/ml. In a case of prostatitis Dr Shah stated that PSA level might rise to perhaps 30ng/ml, but it would not go up to 168ng/ml. That in his opinion would be impossible, and he stated in his evidence that if Mr Ryan was to suggest that that such a level of PSA

was consistent with prostatitis he would be wrong, and he stated that the level of 168ng/ml almost certainly suggested that the plaintiff had prostate cancer which had spread outside the prostate into other parts of the body.

Dr. Shah also states in his report that if the diagnosis of prostate cancer was correct it would be necessary to carry out a further PSA test in two or three weeks time to see if the level had reduced following the prescribing of antibiotics.

Dr. Shah was also critical of the fact that Mr Ryan failed to perform any digital rectal examination ( "DRE"), even though one had been performed both by the junior house doctor on admission, and prior to that by Dr. Motherway. He explained that a DRE would normally be performed on a man who had urinary obstruction, since it shows up whether the prostate is normal in size, shape and consistency in order to pick up cancers. Even though two such DREs had been carried out, he was of the view that Mr Ryan being the most senior doctor in charge of the case should have carried out such a test himself at that stage in July 2001. He also was of the view that a transrectal ultrasound scan should have been done, together with a biopsy, instead of the intravenous urogram which was actually done in this case. He stated that the latter was a rather old fashioned method of examination, and that it was invasive, and was not particularly helpful in the management of patients.

By answering a number of specific questions put to him for the purposes of his report, and his evidence in relation to those same questions, Dr. Shah drew the following conclusions concerning how the plaintiff was treated by Mr Ryan:

•    The diagnosis of prostatitis was incorrect, and there was no evidence to support it. The plaintiff was suffering from prostate cancer, and should have undergone a prostatic biopsy and had investigations of the disease in June/July 2001, and should then have been given treatment for metastatic prostate cancer in 2001.

•    By the 12^th July 2001, in the knowledge that the PSA test had revealed a level of 168ng/ml, Mr Ryan ought to have known that the diagnosis of prostatitis was clearly wrong, and ought to have told the plaintiff of his concerns about the high PSA level, and have told him that it was necessary to exclude a possibility of cancer and to have additional tests done such as the transrectal ultrasound and biopsy. It was inappropriate to say to the plaintiff that a further PSA test should be done in six weeks time and to review the situation again in five months time in December 2001. Dr. Shah stated that it was appropriate to say to the plaintiff at that time that there was a likelihood of cancer. He was of the view that the patient has a right to know this at that time so that he can make a decision about a course of action, particularly in a situation where, according to what Dr. Shah believes, a delay in treatment can have a significant effect on life expectancy. He went as far as to say that he felt it was unethical to hold back information from a patient. He made this comment in relation to the suggestion which had been put to the plaintiff in cross-examination, that he had actually benefited from not knowing he had cancer since he was without that worry for eight months more than if he had been told.

•    That the plan of action outlined by Mr Ryan to Dr. Motherway in the letter to him dated 10^th July 2001, namely to have a further PSA test carried out in six weeks, and a further review in December 2001, was not an appropriate plan of action, and that he should have made a diagnosis of prostate cancer at the outset, and planned to have a second PSA test done much sooner than six weeks, and should have done an ultrasound examination and a biopsy.

•    That in relation to the letter dated 21^st August 2001, it was not appropriate to indicate that the diagnosis was prostatitis and that all that was required was a routine follow-up, since the diagnosis was always prostate cancer until proven to be otherwise.

•    In relation to the attempts to contact the plaintiff after the results of the December 2001 PSA test came through, Mr Shah opined that Mr Ryan was the treating specialist, and had in his possession very important information about the significant rise in PSA level, and that every effort should have been made to contact him since Mr Ryan now knew that he was suffering from a lethal condition and arrangements would need to be made urgently for his treatment. He stated that in his view no stone should have been left unturned to contact the plaintiff, and the fact that the plaintiff was in Saudi Arabia should not have prevented him from being contacted.

•    Finally he was of the view that Mr Ryan ought to have diagnosed possible prostate cancer in July 2001 and have confirmed this diagnosis to the plaintiff by scan and biopsy shortly thereafter. He expresses the opinion that the diagnosis of prostate cancer was wrong, and that it was not wrong because it was a difficult diagnosis. It was simply wrong, and that because it was wrong, the course of action undertaken by Mr Ryan thereafter was wrong.

Mr. Shah was asked to express his view on what, if any effect, the delay of eight months in the diagnosis and treatment of prostate cancer has been for the plaintiff. He stated that he had not met the plaintiff but had seen his medical reports up to December 2002, and had spoken in recent times to Dr. Hardman, his treating physician. He noted that at the present time the plaintiff seemed to be doing well, and that he was a youngish, reasonably fit man, and therefore he would behave slightly differently from an old man presenting with this condition. Having referred to a 1997 study by the Medical Research Council, which was published in the British Journal of Urology, a journal which he said most urologists in the United Kingdom and Ireland would read. Mr. Shah stated that this study demonstrates that there is a definite benefit for early therapy in patients who present with prostate cancer. He stated:

"So Mr Philp had he had his diagnosis made in July 2001 and been provided with hormonal therapy at that time when it is likely that because the level of his PSA was half what it was when he later presented and the disease therefore would have responded more effectively, and he would have then derived life benefit from this. The question as to how much is always very difficult. I have been in discussion with Dr. Hardman and we have very carefully reviewed the literature in this respect, the literature is very helpful in demonstrating that the advantage of early therapy is somewhere between eight months and three years, so the additional life benefits had early therapy been applied to a relatively young and fit man, in other words he was not an old man with intercurrent disease who was going to drop down with heart disease, he was a relatively fit man, was greater. His expected improvement in life expectancy was somewhere between nine months and three years additional life had he been started on hormone therapy early on."

He stated there was never any question of the plaintiff being cured completely at any time after July 2001. It was always simply a question of how long it would take him to die from the disease.

He was also asked what his view would be of the suggestion, if it were to be made by Mr Ryan, that in fact no benefit would have been obtained by this plaintiff from a diagnosis of prostate cancer in July 2001 and prompt commencement of hormone treatment. He answered in the following way:

"I think it is clearly evident and has been since the MRC study in 1997 which has really changed clinical practice around the world that early hormonal therapy for advanced disease is beneficial to the patient, both in terms of survival and reducing the consequences of the complications of metastatic disease."

He was also asked what obligations would be on a urologist after that 1997 study in terms of informing a patient of his right to decide on whether hormone treatment should be commenced early as opposed to delayed treatment. He replied that it is important to inform the patient of the condition, namely prostate cancer, and of the options available for treatment, so that the patient can decide. He said that the patient may very well opt for delayed treatment once appraised of the options and the risks for and against early or delayed treatment, but that at least he should be informed of the risks and the opportunity for either investigation or follow-up, whichever suited his temperament.

Mr. Shah was also asked questions about the MRC study in his direct examination, but I will postpone dealing with those matters until I deal generally with the debate which has taken place in the medical world as to whether early or deferred hormone treatment is the preferred option, both in a general sense, and also as regards this particular patient given his particular age and state of his disease in July 2001. But suffice it to say at the moment that Mr. Shah is of the firm view, based on the results of the MRC study, that the plaintiff would have derived significant benefit if in July 2001 he had been correctly diagnosed and if hormone treatment had been commenced soon thereafter, rather than in March 2002 when his prostate cancer was confirmed to him in Saudi Arabia.

Mr Keane cross-examined Mr Shah, firstly in relation to his opinion that there was no possibility even in July 2001 that the diagnosis of acute prostatitis made by Mr Ryan could have been correct. Mr. Shah agreed that it was advantageous when making a

diagnosis, to actually see the patient and be able to ask questions, but he also stated that someone such as himself looking at that diagnosis was able to examine the notes made by the diagnosing clinician and examine the symptoms complained of, and form a view, even if that was with the benefit of some hindsight. He did not accept that because he had not himself seen the plaintiff in July 2001 he would not be in a position to express a view that, based on the information recorded in the clinician's notes, the diagnosis of acute prostatitis could never have been a reasonable diagnosis. He remained of the view that in this case there was not a single feature present which would indicate prostatitis.

It was put to him for example that one of the presenting symptoms in this case had been dysuria (i.e discomfort in passing urine), and that this can be an indication of infection, but nevertheless a person with dysuria does not necessarily have a high temperature or fever. Mr Shah replied that all patients who have prostatitis also have a fever, and the plaintiff did not. In addition to having dysuria, Mr Keane referred to the fact that the plaintiff had urinary retention, another symptom associated with proststitis, and in addition referred to the fact that Dr. Motherway had noted in his referral letter to the hospital that the plaintiff's prostate on rectal examination was "extra-sensitive and firm". He also referred to the fact that between the 2^nd July 2001 when the plaintiff was allowed home and the 12^th July 2001 when Mr Ryan saw him again, there had been a significant improvement in urinary flow. Mr Shah stated that this referred to flow only in volume terms rather that in the sense of rate of flow. But Mr. Keane put it to Mr Shah that this also would have been evidence in favour of prostatitis since this improvement would not have occurred if in the normal way if there was a cancer. However Mr Shah was firmly of the view that this was not necessarily the case, and that in such patients, once a catheter is has been put in place, the patient will void and will not always go into retention once more, because retention will depend on a number of factors, not confined to the compressive effects on the prostate due to physical abnormality, such as stress and increased amounts of fluid.

It was suggested to Mr. Shah also that the mildly raised serum white cell count of 11.1 was also indicative of prostatitis, but Mr Shah said that this level was not so indicative, and that it would need to have been of the order of 18 or 20 to so indicate. He also referred in any event to the fact that the urine culture on examination was negative, and that there was therefore no infection, and that in cases of prostatitis it was always positive.

Mr. Shah was also cross-examined in relation to his statement that following the PSA result of 168ng/ml in July 2001 the plaintiff ought to have had a second test done in two or three weeks time instead of the suggested 6 weeks. He said that this result was so high (about 50 times normal) that it would need to have been re-checked to see if some mistake had been made in the laboratory. Later in his evidence Mr. Shah also stated that the PSA has a half life of two to three days. By this he meant that if at a particular time the level is 140, then three days later it will fall to 70 if the cause is inflammatory (i.e. prostatitis), and that therefore a patient who has prostatitis and who receives treatment will have a marked improvement in his PSA very quickly, and that this is also a reason why a further test in two to three weeks is desirable even in cases of prostatitis, rather than the six weeks proposed by Mr Ryan.

It was also suggested to Mr. Shah that he was incorrect when he had stated that in cases of prostatitis the PSA level would never be above 30, and that therefore the level of 168 in July 2001 did not necessarily rule out prostatitis as a reasonable diagnosis. Mr. Shah said that the figure of 30 was a figure he had found from reviewing the literature on the subject, but he was referred to a particular article in which it was indicated that the level in cases of prostatitis could be as high as 140. Mr. Shah accepted that he would have to stand corrected on that point, but that it would be necessary for a patient with prostatitis also to have a raised temperature and a positive urine culture, both of which were absent in the case of the plaintiff. He also felt having looked at the article to which Mr Keane had referred him, that the figure of 140 was an exceptional figure with perhaps only one patient in the study having a PSA of that level. Later on in his evidence (in fact on the following day) Mr. Shah stated that he had had a further opportunity of looking at the article to which he had been referred by Mr. Kaene and made the point that this article in fact was not dealing with cases of prostatitis but rather with patients suffering from urinary tract infections, and that therefore the result of 140 was not relevant to the plaintiff's case. But Mr. Keane countered this by saying that it was relevant to the July 2001 situation because it was a PSA level shown in a non-cancerous condition, and that was relevant in the light of Mr. Shah's evidence that a level of 168ng/ml ought to have raised in Mr Ryan's mind the probability of cancer in July 2001.

Mr. Shah had also in his direct examination stated that in his view the correct thing for Mr Ryan to have done on his first examination of the plaintiff was to have carried out a digital rectal examination of the prostate, even though one had been done both by Dr. Motherway and the junior hospital doctor. Mr. Shah was cross-examined about this, and he repeated that as the treating doctor he had a responsibility to do such a test, especially after the PSA level was shown to be 168ng/ml.He said that would have confirmed if it was prostatitis, or that the prostate was abnormal.

Mr. Shah did not agree that it was reasonable for Mr Ryan to wait until another PSA test was done in six weeks time before making any reference to the possibility of cancer. He was firmly of the view that the plaintiff should have had a biopsy in July 2001 and an early follow-up PSA test in two or three weeks time, and that even in a situation where the plaintiff was returning to Saudi Arabia in the near future and might not have had time to have all that done before returning to Saudi Arabia, he would certainly have given him a letter to bring away with him so that he could have the test and biopsy done within two or three weeks. He said that while he may not have actually told the plaintiff as of 12^th July 2001 that he was concerned that he had cancer, he would certainly have told that the plaintiff that he was very concerned about the high PSA level, and that this can be caused by conditions which could be malignant, and that there should be a biopsy carried out to make sure there was no malignancy present. It was put to him that this would have perhaps alarmed the plaintiff needlessly before the results of the PSA test in six weeks was done. However, Mr. Shah was sure that a doctor could never not inform a patient of

such a situation. In view of the very high PSA level already known on the 12^th July 2001 he was of the view that the plaintiff ought to have been told its possible significance then.

He was of the view that nowadays one had to inform the patient of possible adverse facts, and not hide the facts from them. Mr. Keane suggested that this would be to worry the patient needlessly until the situation became known beyond any doubt. However Mr Shah stated that patients will worry in any event, where they are told that something needs to be re-checked, and that it is better to tell them the facts, rather than have them worried without knowing the facts. He believes that patients like to know what is going on, and that they worry one way or the other. He completely rejected the proposition put to him that it is in fact an advantage to a patient to have eight months free of worry by not being warned during that time that he might have cancer, if in fact he does have cancer and there is no treatment that can be given to him during that time that would have any beneficial effect. He was of the view that the patient needs to be told so that he can have an opportunity to make necessary arrangements in his life, and that to keep the patient in the dark was wrong.

Mr. Shah was then questioned about his opinion expressed in relation to question 9 in his medical report. That question was:

"In the events which occurred Mr Ryan failed to warn the patient until 10^th March 2002 of the risk that he might be suffering from prostate cancer. Was this acceptable management of this patient?"

The answer contained in this report is as follows:

"Mr Philp should have been warned that the diagnosis of prostate cancer was a distinct possibility – in fact likely and confirmed it by biopsy."

Mr Shah admitted that when he prepared this report he was not aware of the efforts which Mr Ryan had in fact made to contact the plaintiff, such as the three phone call attempts made on the 18^th, 19^th and 21^st December 2001. He also said that while he had known at the time of his report that Mr Ryan had written a letter dated 7^th January 2002 to the plaintiff at his address in Saudi Arabia (because that fact was contained in the Statement of Facts which had been furnished to him prior to his report), he had not been aware that it had failed to arrive until 10^th March 2002. He admitted that he also did not know that Mr Ryan had no other telephone number for the plaintiff other than the Cork number. He accepted that these factors were relevant in relation to the results of the December 2001 PSA test, but not in relation to the overall matters going back to July 2001. Mr Shah also made the point that if the plaintiff in July 2001 had been given information as to the significance of a high PSA level and the possibility of cancer, it would in all probability have ensured that the plaintiff himself kept in touch with Mr Ryan about his results, and would not have resulted him in remaining in what he described as "blissful ignorance".

Mr. Shah also disagreed, when it was put to him, that it was sufficient for a consultant urologist dealing with an adult patient, to tell that patient to contact him for results of a test, and that it was not necessary that the patient should be told it was important and not to forget and so on. He certainly felt that the patient should be given the responsibility of making contact, but added that it depended on how much the patient had been told, as this would affect the degree of likelihood of that patient making the necessary contact. He went on to say that if it was just a routine test and the patient went abroad, he might

consider that the test was not very important and might overlook making contact, whereas if the patient was told that the results of the test were crucial and that the doctor had concerns, that would ring alarm bells with the patient and would ensure that he did in fact make contact for the results.

Mr. Shah was also referred to that part of his report where he opined that "it was difficult to know whether or not the delay in diagnosis made any significant difference to Mr. Philp's life expectancy".

He stated that it was difficult at the time of that report because he did not have any information about the plaintiff's condition after December 2002, but that having now had an opportunity to discuss matters in more detail with the plaintiff's consulting physician, and having had an opportunity of carefully considering the literature on the subject, he could improve on his opinion expressed in his report. He was of the view now that if the plaintiff had received hormone therapy at the earliest opportunity, his life expectancy would have been enhanced by between eight months and three years. He stated that this view was formed in the light of the 1997 MRC study.

He was asked whether it was at least arguable that the delay of eight months in the commencement of treatment had made no difference to the plaintiff's life expectancy. He stated that such a proposition was not in his view arguable, and that while the general question of delayed versus immediate hormone therapy may be a matter of academic controversy, it was not arguable in the case of this plaintiff who was at the time a fit 53 year old man, rather than an older man, and that he had many features which demonstrated that if anybody could benefit from early treatment, the plaintiff could.

There was also considerable cross-examination by Mr. Keane in relation to the academic debate in medical circles as to benefits of early versus deferred hormone treatment. .At the conclusion of his cross-examination of Mr. Shah, Mar Keane put it to Mr. Shah that the greatest probability by far in this case was that the eight month delay in the administration of hormone treatment had no effect on the longevity of the plaintiff. Mr. Shah replied: "I don't suppose we will ever know." However on re-examination, Mr. White asked him to express a view in terms of probability, and Mr. Shah responded as follows:

" I believe that the critical issue related to the primary diagnosis at the earliest possible opportunity A fit young man, relatively young man without any intercurrent illness, albeit a serious disease, had an opportunity to be informed of the condition and I fully accept all the limitations of the literature, but I believe that, if he had been offered the opportunity to have early hormonal therapy he would have been likely to have accepted it, and there is enough evidence, controversial though it may be, to suggest that he would have had a benefit in terms of prolonging survival and certainly reducing the potential risk of complications as a consequence of disease that progressed and would progress, and probably will progress."

The evidence of Dr. Hardman:

Dr. Hardman is a clinical oncologist and is the plaintiff's treating physician. His qualifications are not in issue in this case. He stated that in his practice he obtains referrals from six local general District Hospital with respect to prostate cancer and he sees approximately two new cases of prostate cancer each week. He started treating the plaintiff in or around the month of May 2002. He also stated that this was the first case in which he had ever given evidence in court. He was referred to his report which is dated 21st October 2003. He prepared this report at the request of the plaintiff's solicitors.

These instructing solicitors asked him to address in his report whether he agreed with the opinion expressed by Mr. Shah in his report dated 22nd May 2003 that the diagnosis of prostatitis made was incorrect and that appropriate management of the patient would have resulted in a diagnosis of prostate cancer about eight months in advance of its eventual diagnosis in Saudi Arabia. In his report he answered this question as follows:

"Yes. Mr Philp was admitted acutely on 26th June 2001 in urinary retention. At that time the Serum PSA was noted by Mr Ryan to be markedly elevated at 168.18 ng/ml. This grossly elevated PSA level is strongly indicative of prostate cancer and I would have expected Mr Ryan to request a trans rectal ultrasound with prostatic biopsy to confirm or refute this diagnosis. In the clerking history, it was noted that the prostate was moderately enlarged and felt benign. Mr. Philp was apyrexial and there is no mention in the hospital notes that the prostate was tender or boggy. I do not see that there is any contraindication to appropriate imaging and biopsies being taken. Had this been done it is reasonable to assume that the diagnosis of prostate cancer would have been made about eight months prior to the eventual diagnosis made in Saudi Arabia."

While giving evidence he was also asked whether he had had an opportunity to look at the urine culture results which were obtained in July 2001. He said that those results showed that there was no bacterial growth on culture of the mid--stream of specimen of urine, and that therefore there was no proof of bacterial infection. When asked what was the significance of the absence of evidence of bacterial infection in the context of prostatitis, Dr. Hardman stated that it gravely weakens the case that that was the true diagnosis. He also saw none of the other features which one would expect to find in a case of prostatitis, namely what he described as "exquisite pain and tenderness of the prostate, the patient would reasonably be expected to be febrile, the leucotyte count in the blood would be grossly elevated." ("leucotyte" meaning white cell)

He accepted that there was a mildly raised white cell count, but stated that in a case of prostatitis, one would expect it to be double what was found to exist.

In relation to the PSA result of 168 he stated that it certainly was not evidence of prostatitis, but that it was strong evidence of aggressive metastatic prostate cancer. He accepted that in certain cases of prostatitis the PSA can be raised, but that it is not a consistent feature and does not correlate with the degree of inflammation in prostatitis, and that while it can be associated with prostatitis, it is not a marker of that condition. He stated categorically that one could not give a diagnosis of prostatitis based on a PSA level of 168.18ng/ml.

Dr. Hardman was also asked whether Mr Ryan ought to have conducted a digital rectal examination himself when he first saw the plaintiff. He stated that since the report of Dr. Motherway had described the prostate as being extra-sensitive, and the admitting medical officer at the hospital had simply reported that the prostate was enlarged and benign, there was therefore a discrepancy in relation to that matter and that since exquisite tenderness of the prostate is a cardinal feature of prostatitis, Mr Ryan should have confirmed the position as to tenderness.

He was also asked if he would have expected Mr Ryan who was referring a patient for a repeat PSA test in Saudi Arabia to have given his patient something to take with him in the form of a letter of referral. He stated that it was "culpable and reprehensible", that a formal referral was not made. He was of the view that Mr Ryan should have made inquiries about the forwarding address of the hospital which the plaintiff was going to attend and should have contacted them by letter.

He was also asked to comment on the suggestion being made by Mr Ryan that it was appropriate not to disclose the risk of cancer in a test result of 168.18 on the 12th July 2001. He said that he could not agree with that that style of medicine. He was of the opinion that such a result was strongly indicative of prostate cancer and that the issue needed to be addressed promptly and required a biopsy to be done and that the patient had to be informed that there was a risk of cancer. In relation to the suggestion that by not being told, the plaintiff had derived a benefit by not knowing the risk of cancer at that stage, Dr. Hardman disagreed and stated that the plaintiff needed to make certain decisions about the commencement of hormone treatment, in consultation with his medical adviser. He accepted of course that it would be a worry to him to be told that there was a high probability of prostate cancer, but that the correct way to offset that worry was to bring matters to a definitive conclusion promptly and to proceed with a trans-rectal ultrasound and biopsy as a matter of immediate urgency. He was of the view that this would have been the proper way to reduce the patient's understandable anxiety.

Dr. Hardman also expressed the view that if the plaintiff had not had the bilateral orchiectomy, supplemented by a total androgen blockade in March 2002 he had little doubt but that the plaintiff would by this time be dead.

Dr. Hardman was asked to consider the condition and management of plaintiff since he had come under his care in May 2002. He stated that on the 12th March, 2002 while in Saudi Arabia, the plaintiff's PSA level was measured at 328ng/ml. He stated that this had immediately triggered appropriate investigations which should have been immediately triggered eight months previously in his view. These investigations included a CT scan of the abdomen and pelvis, together with a bone scan and prostatic biopsy. The diagnosis of a high grade prostate carcinoma was confirmed, with metastatic involvement of the lymph nodes in the pelvis and abdomen. The bone scan at stage did not show any evidence of skeletal metastases (i.e. bony disease). He went on to say that during March 2002 he underwent a laparoscopic lymph node dissection and a bilateral orchiectomy, and that at he subsequently demonstrated accent and biochemical and radiological response with his PSA falling to less than 0.05ng/ml. This was in July 2002. However, by September 2002 the PSA level had risen again to 20g/ml, and repeat bone scanning performed at that time showed two spots in the ribs and pelvis consistent with metastatic bone disease. The plaintiff immediately commenced anti-androgen drug treatment (Flutomide) which resulted in the PSA falling again to 8ng/ml by 20^th March 2003, with a further fall by 14th May 2003 to 5.8ng/ml, thereby achieving total androgen blockade.

In his evidence, Dr. Hardman explained that the biochemical objective is to remove testosterone. The orchidectomy reduces testosterone to castrate levels, but that this is only 90 per cent of the task, and that there is a further 10 per cent component of testosterone which emanates from the adrenal glands. It is that 10 per cent component which is dealt with by the anti- androgen drugs blockade.

Dr. Hardman took the plaintiff off Flutomide in June 2003 because it was causing some adverse side effects and put him on another drug, namely Bicalutomide, and by 21^st August 2003 the PSA level had reduced to 4.8ng/ml which was confirmatory of the effectiveness of the strategy of total androgen blockade. He stated that the plaintiff was still taking Biclutomide to the present time and he is continuing to monitor his progress.

Dr. Hardman went on to state that the plaintiff is a good example of a patient who demonstrates a convincing response to hormone therapy, and that he is one of the 80% of patients who respond well to this form of treatment, having seen his PSA level drop at one point to 0.05ng/ml.

Dr. Hardman also referred to the 1997 MRC study dealing with the question of whether hormone therapy should, with patients with advanced prostate cancer, be commenced early, or whether it should be delayed until the onset of metastases, and expressed his view in accordance with his Report that it was likely that the delay in the plaintiff's treatment by eight months will result in the plaintiff dying sooner than he would have done had the treatment been commenced in July 2001, and that his quality of life due to the progression of metastatic bone disease (i.e. the cancer spreading into the bones) will be adversely affected to a significant extent as a result of this delay in treatment.

He expressed his opinion having discussed this question with Mr. Shah, that in terms of probability since certainty was not possible, the plaintiff's loss of expectation of life can be reasonably judged to be in the range of eight months to three years. He bases this prediction mainly on the results of the MRC study to which I have already referred and to which I shall return when dealing generally with the academic debate which has taken place in medical circles as to the benefits of early or deferred hormone treatment in cases of prostate cancer.

Cross-examination of Dr. Hardman:

Mr. Keane took issue with Dr. Hardman's criticisms of Mr Ryan's diagnosis of acute proststitis, and suggested to him that he was looking at the diagnosis with the benefit of hindsight. However Dr. Hardman disagreed. He went on to say that prostatitis was a very uncommon condition, and that it means inflammation of the prostate, which in turn implies swelling, erythema, temperature, pain and loss of function. He said that in prostatitis the patient is in "such exquisite pain that he cannot sit" and will not submit to a rectal examination. There should also be bacteriological evidence of infection and the patient should have a fever, and should have what he described as "a convincing urethcystitis". These, he said, were the diagnostic criteria of prostatitis, which he said was an uncommon condition.

Prostate cancer on the other hand, he described as a common condition, and that in view of the PSA level of 168ng/ml which the plaintiff had in July 2001, it was the biological equivalent of walking into a room with that diagnosis on his forehead.

He said that none of the major cardinal criteria of prostatitis was convincingly met. On the other hand he said that a major indicator of prostate cancer was present, namely the PSA level of 168ng/ml, and not acted upon. For this reason he did not accept that he was looking at the matter only with the benefit of hindsight. He felt that the diagnosis of prostatitis was never credible in this case. He was also of the view that it would have been highly relevant to a diagnosis of prostatitis to have done a digital rectal examination, and that it is the only means by which the diagnosis could in fact be sustained. When it was put to him that in fact two such examinations had been carried out, one by Dr. Motherway prior to the referral to hospital, and another by the doctor who first saw the plaintiff on admission, Dr. Hardman stated that since these tests according to the records, displayed a discrepancy (i.e. in relation to tenderness of the prostate), it was essential for Mr Ryan, as the urologist in charge to make an authoritative examination for himself, and that had he done so the situation would have become clear to him, and he pointed to that particular moment as the moment when things went wrong in this case.

It was put to Dr. Hardman that at the time Mr Ryan made the diagnosis, he had a reasonable basis for making it. However, Dr. Hardman disagreed and said that the only evidence in favour of that diagnosis was Dr. Motherway's comment that the prostate was extra-sensitive, whereas if he had prostatitis, the plaintiff would have been a very ill man with a fever, and with a white cell count of perhaps double the normal, whereas the white cell count found was 11.1 which would according to Dr. Hardman be consistent with a runny nose.

Dr. Hardman was of the view that on the 12^th July 2001 Mr Ryan should have had a further PSA test carried out and further physical examinations carried out to bring the diagnosis to a conclusion and that the plaintiff should have been told of the possible implications for cancer no matter how distressing such a discussion might be for the plaintiff. Mr. Keane suggested that in fact it might have been inappropriate to have done a further PSA test on that date since the removal of the supra-pubic catheter itself would have distorted the PSA level, thereby making unreliable the results of such a test. But Dr. Hardman stated that while there may be an increase it would be by only a fraction, and if there was a decrease in the level following the taking of the antibiotics, the impact of the distortion caused by the removal of the catheter would be minimal and that therefore an opportunity was missed by Mr Ryan on that occasion.

Mr. Keane suggested that it was therefore reasonable for Mr Ryan to want to have a further test done in six weeks time, rather than on the 12^th July 2001. But Dr. Hardman was certain that in his view Mr Ryan should have examined the plaintiff by digital rectal examination and that if the prostate was hard and quiet, rather than boggy and tender with no inflammatory signs, he should have proceeded to biopsy with all speed.

Dr. Hardman considered that in all probability in July 2001 the plaintiff was already suffering from high grade prostate cancer, and that the PSA level of 168ng/ml was automatically indicative of an aggressive form of prostate cancer which had in all probability begun to metastasise.

In relation to the consultation of 13^th December 2001, Mr. Keane put it to Dr. Hardman that it was reasonable for Mr Ryan to have asked the plaintiff to contact him in relation to the results and that it was not necessary for him to do anything further to ensure that he did in fact contact him. However, Dr. Hardman felt that Mr Ryan ought to have also told the plaintiff the reason behind the PSA test, and that this would have ensured that he did in fact make contact for the results. He said that since the gravity of the situation was not explained to the plaintiff, he was not totally surprised that contact was not made, and that it should have been put to the plaintiff more strongly, particularly in a case of a probably serious diagnosis. He did not think that the plaintiff failed in a responsibility to look after his own interests in not making contact for the results, in a situation where the importance of the results was not made clear to the plaintiff.

The evidence of Mr Denis Murphy:

Mr. Murphy is a consultant urologist and his qualifications are not in issue in this case. For the purposes of this case Mr. Murphy has prepared two reports on behalf of the defendants. One report is headed "Report on Liability", while the other is headed "Medical Report". Each is dated 23^rd May 2003.

Mr. Murphy gave evidence first of all based on his "Report on Liability". In that report he addressed three questions:

1. Whether the initial treatment given to the plaintiff was correct.

2. Whether it was correct not to inform the plaintiff that he might have prostate cancer.

3. Whether Mr Ryan's efforts to communicate the results of the plaintiff's repeat PSA test (i.e. in December 2001) were adequate.

1. Whether the initial treatment given to the plaintiff was correct:

Mr. Murphy stated in his report that on the basis of a diagnosis of prostatitis the treatment given by Mr Ryan was appropriate. However he also commented in his report that this diagnosis could be challenged and he set out a number of features of prostatitis, which included the presence of moderate to high fever, an exquisitely tender and swollen prostate gland upon rectal examination, and the presence of bacteria in the urine. In his evidence he said that he probably on balance would not have diagnosed prostatitis in this case. But he then went on to say that having heard the reasons given by Mr Ryan for diagnosing prostatitis, he thought that while he would not have considered that it was prostatitis, it was a reasonable thing to accept at the time.

In relation to whether it was reasonable for Mr Ryan to organize a further PSA test to be done in six weeks time in July 2001, he stated that this would be reasonable if there was doubt about the diagnosis, and that if a patient came to see him who had a raised PSA and have symptoms which fit prostatitis, he would give antibiotics and repeat their PSA, and if then it is still raised he would then do a biopsy, but he also said that such an elevated PSA would be at a lower level than the 168ng/ml with which the plaintiff had presented. He did not think six weeks was too long to wait, unless he was sure that the diagnosis was cancer. In that situation he would proceed to biopsy immediately.

Mr. Murphy could not accept what Mr. Shah had stated in his evidence that one could not have a case of prostatitis if the PSA was above 30ng/ml.

2. Whether it was correct not to inform the plaintiff that he might have prostate cancer:

In his report Mr. Murphy stated that "many if not most Irish urologists would not wish to add to a patient's anxieties by telling them of alternative explanations for the elevation of the PSA".

He was referred to the evidence of Mr. Shah and Dr. Hardman that they would have told the plaintiff that they thought he had cancer. He stated that the culture of informing patients varies from country to country. He said that as far as his own practice was concerned, in a situation where he was proceeding to biopsy, he would tell the patient that there was a risk that he might have cancer. But in a situation where he was not proceeding to biopsy and was prescribing antibiotics, it would not be his practice to tell the patient that he might have cancer. He said there was no great kindness in doing so at that point, as it causes great anxiety, and it might turn out to be not correct.

3. Whether Mr Ryan's efforts to communicate the results of the plaintiff's repeat PSA test (i.e. in December 2001) were adequate:

Mr. Murphy has stated that if he (Mr. Murphy) had asked a patient in July 2001 to have a further PSA test done and in December 2001 discovered that it had not been done, he would have said to the patient that there was a risk of cancer and it must be done.

In the light of the accepted fact that the plaintiff did not make contact with Mr Ryan for the results of the December PSA test, as he should have done, Mr. Murphy was asked to comment on the steps which Mr Ryan says he took to make contact with him in relation to that result. In his report he has said that those efforts were not deficient, and that apart from trying to telephone him on the three occasions, he did not see what more he could have done besides writing to him by post at his address in Saudi Arabia. In his evidence he said that these efforts were reasonable, and that if you put a letter in the post, one expects that it will be delivered, and that it would be difficult in a busy practice to provide the sort of "surveillance" suggested by the plaintiff's Counsel (i.e. dairying the matter forward to see if any response was received).

Mr. Murphy was then asked for his views on the question of when hormone treatment should be initiated in a case of prostate cancer. In this regard he has stated in his report that "it is not clear that the delay in initiating treatment was detrimental to Mr. Philp's prognosis."

He stated that there is no firm conclusion one way or the other as to whether one should initiate treatment when the diagnosis is made, or when the patient is shown to have metastases, or when the patient develops symptoms from these metastases, and that there was a very broad spectrum of opinion in this regard. He said that there were very many people who would feel that treatment should be initiated immediately the diagnosis of cancer is made, and there was an equal number who would feel that treatment should be deferred until there is evidence of the progression of the disease. He considered that the two schools of thought in this regard were about equal in size, rather than that one school of thought predominated. He felt that both schools of thought were both well respected schools of thought in the medical world. He himself, he stated, belongs to the school of thought which would favour deferring treatment at least until the patient showed evidence of disease progression. He also stated that he would not have begun hormone treatment on the plaintiff even in March 2002 when his diagnosis was confirmed in Saudi Arabia, since at that stage his bone scan was negative, but he did say that he would have kept him under close observation. He would not have begun treatment until such time as he had developed demonstrable metastases other than in the lymph nodes. He might not have treated him until he developed bone pain.

His reason for this view is related to the fact that hormone treatment has only a limited effective lifespan – referred to in the evidence as "a limited innings". This innings, he explained, is on average about two and a half or three years between the onset of hormone treatment, and the emergence or takeover by the hormone resistant cells or clones in the prostate cancer. In other words, this treatment should be preserved or deferred until it is most needed, as its effectiveness is of only limited duration, and once its effectiveness has ceased, the hormone resistant cells will grow inevitably and eventually kill the patient.

Mr. Murphy stated also that in Beaumont Hospital where he works in Dublin there are five Consultant Urologists, and he knows that three of them would prefer not to commence treatment immediately upon diagnosis, but would wait until the disease showed progression, and by that he means when a bone scan was positive, or there was some other manifestation of metastatic disease beyond the lymph nodes. He expressed his opinion that if the plaintiff had commenced treatment in July 2001 he did not think that he would have any better prognosis than he has at the present time, either as to longevity or in terms of quality of life.

He also stated that when considering the right time to commence treatment, the disadvantages of hormone treatment had to be addressed with the patient, as the side-effects were profound. They include loss of libido and potency, osteoporosis, osteoporotic fractures, anaemia, fatigue, loss of muscle mass, hot flushes, weight gain, increased mental acuity and depression.

One of the advantages of deferral as far as Mr. Murphy is concerned is that these side-effects are also deferred. Having considered both sides of the argument he does not see advantages in early treatment – only disadvantages.

Cross-examination of Mr. Michael Murphy:

First of all, Mr. Murphy agreed that a consultant ought never to alter a patient's clinical notes as Mr Ryan had done.

He also expressed disappointment at hearing that the document which is described as "Case Summary" and which Mr Ryan had prepared for the purpose of getting an expert report from Mr. Murphy and for the defence of this claim was not a document which Mr Ryan could now stand over, as emerged from his cross-examination during this case. He agreed that Mr Ryan had acted inappropriately in the preparation of the Case Summary. It was put to Mr. Murphy that if Mr Ryan altered the clinical note in the way he did to indicate that he had told the plaintiff on the 12^th July 2001 to have the further test carried out, it must mean that Mr Ryan regarded it as important to his case to be seen to have so instructed the plaintiff, and that if Mr Ryan did not regard it as important as to whether the plaintiff received hormone treatment in July 2001 he would not have gone to those lengths to alter the record. However, Mr. Murphy did not feel able to comment on what might have been in Mr Ryan's mind in this regard. Mr. Murphy was cross-examined on his Medical report also. He agreed that it would have been prudent for Mr Ryan to have performed a rectal examination when he first saw him, and that he himself would have done so. He stated that in the case of the plaintiff there was no evidence which would have satisfied him that the plaintiff had prostatitis.

The academic debate:

It is not necessary to give an exhaustive account of this debate, but I will give perhaps a flavour of it and draw a conclusion in so much as that is necessary for the purposes of what I need to decide in relation to it. Quite a number of academic articles and studies have been referred, and Dr. Hardman and Mr. Shah on behalf of the plaintiff, and Mr Ryan, and Mr. Murphy on his behalf, have commented on this material, and have expressed their views.

What is beyond any doubt is that there are two respectable schools of medical opinion in relation to a general question as to whether it is better to hormonally treat a patient as soon as a diagnosis of localized prostate cancer has been made, or whether it is more beneficial to the patient to wait until that disease has progressed to other parts of the body, or indeed whether it is better to wait beyond that until the patient has actually developed symptoms. However, that is putting the debate in a very general way, and Mr. White has submitted that in dealing with this debate and the studies and material it is not a question of deciding which school of thought is correct, since to do so would actually imply that a doctor who adhered to the school of thought that was found to be incorrect would be guilty of negligence if he continued to treat his patients in accordance with that school of thought. But what is important to deal with is whether, by reference to the studies and material and the evidence adduced in relation to this matter, it is on the balance of probabilities likely that this particular plaintiff, Mr. Philp, given his particular characteristics of disease in July 2001, has had his life shortened by his treatment being delayed until March 2002, resulting from the missed diagnosis in July 2001, or is Mr Ryan on the balance of probabilities correct when he submits that he would, according to the school of thought to which he adheres, have been correct or justified in any event to have deferred hormone treatment until March 2002 and without any adverse consequences for the plaintiff as far as life expectancy is concerned.

The study upon which the plaintiff's doctors place reliance for their belief that early hormonal intervention upon diagnosis of prostate cancer is the Medical Research Council Study (hereinafter called "the MRC study") which was commenced in 1985. Recruitment into this study closed in 1993, and first results from the study were published in the British Journal of Urology (1997), 235 – 246, under the heading: "Immediate versus deferred treatment for advanced prostatic cancer: Initial results of the Medical Research Council trial".

938 patients took part in the study since 1983. These patients were men who had locally advanced prostatic cancer (i.e. which had not yet spread beyond the prostate), and men whose cancer had metasticised (i.e spread into other areas such as pelvis or bones), but who were as of that time asymptomatic.Follow-up data were returned on 934 of these patients. In order to be eligible for this trial, certain criteria had to be met. I do not need to describe those criteria in any detail, but suffice to say that Dr. Hardman and others agreed that the plaintiff would have fitted the criteria and would have been eligible for the study. In other words, it is contended therefore that the results of the study are relevant to the plaintiff's disease and its treatment.

A summary of the results of the MRC trial is contained in the heading of the article. It states that progression from having no metastatic disease to the point of having such metastatic disease confirmed by bone scan, was more rapid in the case of patients whose treatment was deferred, than it was for patients whose treatment was commenced immediately upon diagnosis. The conclusion appearing in that heading reads:

"The results consistently favour immediate treatment, although some of the data, especially on M0 patients, are immature."

An "MO" patient is one who has no evidence of metastatic disease, so confirmed by bone scan. Mr Keane in his cross-examination highlighted the reference to some of the results in this test being described as "immature", and in that way sought to reduce the extent to which reliance could be placed on the findings of this report. There is also a part of the introduction to this article which suggests that in an elderly man there may be no advantage in early treatment upon diagnosis, because such a man will in all probability die from other natural causes before he would die from his prostate cancer even if untreated, and therefore there would be no advantage in his being so treated, and since there can be adverse side-effects to hormone treatment, it might be preferable not to so treat an elderly man needlessly. But, of course, the plaintiff is not an elderly man, and so this reservation would not apply. It is stated that unless early treatment can be shown to have advantages it should be deferred until the patient has developed symptoms of metastatic disease. The introduction also makes a reference to two older American studies undertaken in the 1970s by the Veterans Administration Cooperative Research Group (hereinafter referred to as the VACURG studies). These are two of the studies upon which reliance is placed by the opposing school of thought within medical circles, and to which Mr Ryan and Mr. Murphy adhere apparently, and who favour deferred treatment. The introduction states in regard to the VACURG studies:

"Reviewing these studies, Byer stated "these data support the concept that treatment can be delayed….". Mr. Keane has drawn the court's attention to this sentence in support of his submission that it is by no means settled that the immediate treatment school of thought is the only respected view of this question, and that the issue is still open. Mr. White on the other hand submits that while the question might be open in the context of the general debate, there is no question reasonably open as to how this particular plaintiff should have been treated, since he was a young fit man with an aggressive form of prostate cancer, with a high PSA level as of July 2001, and that he had to be offered the option of immediate treatment at that time, and that for him the MRC study would definitely confirm that his life expectancy would be improved with immediate treatment.

Another conclusion reached by the MRC study is that the overall incidence of serious complications, such as spinal cord compression, pathological fractures and extra-skeletal metastases was twice as high in patients whose treatment was deferred as in patients whose treatment was commenced upon diagnosis. These complications must be distinguished from the side-effects of treatment, such as impotence.

One of the graphs shown in the article indicates that patients of the plaintiff's type and who were treated immediately had in excess of a two year survival improvement over those whose treatment was deferred, although Mr. Keane pointed to that part of the article which in this context stated that some of the data was regarded as being still immature. The article concludes with the following paragraph:

"In conclusion, it may still not be possible to make an absolute recommendation to all men with prostate cancer, but the data presented in this paper provide consistent support for the benefits of immediate treatment. The more rapid local and distant progression occurring when treatment was deferred had significant clinical effects in terms of an increased need for TURP, earlier onset of symptoms, and, most importantly, a greater risk of important complications such as spinal cord compression. The survival data are perhaps the first clear evidence from a comparative study that early hormone treatment has an effect on mortality. However, for about 10% of patients, treatment does not become necessary during their lifetime. This benefit is unlikely in a younger patient, but for an elderly man with non-metastatic disease, deferred treatment probably remains an option. Certainly the data presented in this paper can be usefully presented to asymptomatic patients with advanced prostate cancer during discussions with them about their treatment."

Having read that article several times, one is left in no doubt but that the plaintiff who was at the time, and is still, a young man, described also as a fit man, is a person which the results of this study, if they be correctly interpreted in this article, would certainly indicate would benefit from early treatment and would be part of the body of sampled patients whose life expectancy would be improved over that of a deferred patient by over two years. That is inspite of Mr. Keane's reservations about the immaturity of some of the data, and his other reservations about the study which appear in the transcript.

There is an abstract also of a follow-up study of the MRC patients by D. Kirk (one of the members of the original MRS study Working Group) and which appears in the BJU International, Vol 86, November 2000. It appears that by the time of this later report on the MRC study patients, 815 of the 934 patients who took part in the study had died. These were in the older age group. There were apparently only 10 in the 815 who died who were under sixty years of age, a point highlighted by Mr. Whyte given that the plaintiff was fifty three in 2001. However, this abstract states in its conclusion that immediate treatment has an impact on advanced prostate cancer, reducing complications and improving disease specific survival. It goes on to say however that the reduction in an overall survival difference seen on long-term follow-up suggests an adverse effect of prolonged hormone treatment in increasing mortality from other causes."

The VACURG studies are studies which date back to the 1970s and to a time when PSA testing did not exist and modern drug treatment did not exist, and its relevance must therefore be questioned in the light of more modern advances in knowledge and treatment. This is referred to in another study referred to by the plaintiff, namely that by Edward Messing dated July 2002 and entitled "The timing of hormone therapy for men with asymptomatic advanced prostate cancer", published in February 2003 in Urologic Oncology (Elsevier). The introduction mentions the VACURG studies, and the fact that while they showed that immediate hormonal therapy delayed progression of disease, "demonstration of any survival advantage was confounded by the cardiovascular toxicity of diethylstilbestrol (DES), and it became routine clinical practice to defer hormonal treatment. However as non-surgical hormonal treatments without the lethal toxicities of DES, for example, …………….have become available since the VACURG studies, it may be time to reconsider whether this practice is still appropriate."

"This practice" clearly refers to the practice of deferring treatment, which had become common clinical practice because of the lethal toxicity of the DES treatment. In other words, it seems to be saying that DES treatment was killing the patient earlier than he would die if he did not receive the treatment, hence it was deferred until much later. This Messing article reached the following conclusion in relation to the MRC study:

"In summary, the MRC study shows that immediate hormone therapy significantly prolongs life in men with advanced prostate cancer who have no evidence of bone metastases at diagnosis. In patients with metastatic disease at study entry, immediate therapy is associated with a delay in the onset of symptoms and a reduced risk of disease-related complications."

The Messing article considers a number of studies, including the MRC study, which was the study with the largest patient participation (938). Part of the Messing article deals with the review of these studies under a heading "6. Which patients should receive immediate hormone therapy?" It states as follows:

"This review of prospective randomized trials comparing immediate and deferred hormone therapy demonstrates that immediate therapy does extend overall survival in certain groups of men with prostate cancer. These include men with clinically localized disease found to have node-positive disease at radical prostatectomy and pelvis lymphadenectomy. In addition, men with untreated, locally advanced MO disease appear to have their survival prolonged by receiving immediate therapy (although a recently reported trial questions that conclusion). Additionally, asymptomatic men with distant metastases benefit from a marked reduction in disease complications, and thus, enhanced quality of life……."

That reference to a report questioning the conclusion referred to is a study by Studer et al, which is discussed earlier in the Messing article. The Studer et al study is commented upon as being in respect a very small sample size (compared to the MRC study) i.e. 188 men, and that it has been commented upon only in abstract form resulting in specific findings not yet being available.

Mr. White also referred to an article by Messing et al in The New England Journal of Medicine, December 1999, Vol 341, page 1781 et seq. which reports on a study carried out on 98 men who had undergone a radical prostatectomy and pelvic lymphadenectomy. This study was undertaken by the Eastern Cooperative Oncology Group (referred to in the evidence in this case as "the ECOG study"). The article states that

"After a median of 7.1 years of follow-up, 7 of 47 men who received immediate antiandrogen treatment had died, as compared with 18 of 51 men in the observation group (P=0.02). The cause of death was prostate cancer in 3 men in the immediate-treatment group and in 16 men in the observation group (P<0.01)."

In other words a man was five times more likely to survive longer with immediate treatment. Following their operation these men underwent hormone treatment, and the article states its conclusion that:

"Immediate antiandrogen therapy after radical prostatectomy and pelvic lymphadenectomy improves survival and reduces the risk of recurrence in patients with node-positive prostate cancer."

Mr. Keane pointed out that the plaintiff had not undergone a radical prostatectomy and pelvic lymphadenectomy and that this conclusion was therefore irrelevant to this case. He also pointed to the small size of the study, namely 98 men.

Mr. Keane on behalf of Mr Ryan has referred the court to a number of editorial commentaries which appear to question the conclusions claimed in respect of the MRC study that early hormone treatment has definite advantage to life expectancy over deferred treatment. These commentaries are contained in The Journal of Urology, October 1997, Vol 158 at page 1623-1624; Journal of Urology, June 1998, Vol 159, page 2105; New England Journal, 1999, Vol 341, page 1837-1838. There is also some comment by M.C. Bishop of the Department of Urology, Nottingham City Hospital, which is made in the form of a letter to the editor of The Lancet, March 1997, Vol 349, page 1552. He also referred to a review of these matters carried out in 1999 by the Blue Cross and Blue Shield Association (an Insurance Company) entitled "Relative Effectiveness and Cost-Effectiveness of Methods of Androgen Suppression in the Treatment of Advanced Prostatic Cancer. I will deal with these items firstly, and then go on to deal with perhaps the most significant article referred to by Mr Keane, namely that by Walsh et al entitled "A Structured Debate: Immediate versus Deferred Androgen Suppression In Prostate Cancer – Evidence for Deferred Treatment". This appeared in The Journal of Urology, August 2001, Vol 166, pages 508-516.

The Journal of Urology, October 1997:

This comprises "Editorial Comment" by the Editor, Patrick C. Walshe, MD, who is a widely respected and renowned Irish Urologist. This editorial comment is on the MRC report which as of the date of the comment was recently published. Mr. Walshe states as of that time that the MRC study would receive a lot of comment because of the fact that the results differ from what he describes as a similar study performed in the United States many years ago. This is a reference to the VACURG studies to which I have already made reference, and which concluded that there was no survival advantage in immediate as opposed to deferred treatment. Mr. Walshe expresses concerns about the MRC study results in relation to the follow-up protocols in the MRC patients, and states that some deficiencies in the follow-up protocols may have distorted the results in favour of a conclusion that early treatment was beneficial. He refers to the VACURG study and point out that it was a study undertaken in the 1960s, that it involved 1050 patients (a greater number that the MRC study group), but that there was a much greater degree of follow up required than in the MRC study, which permitted a simple follow up with no guidelines. He concludes his commentary with the following:

"The major difference in these 2 studies is the follow-up protocol. Although I believe in delaying hormonal therapy until patients have a positive bone scan, the Medical Research Council study shows that hormonal therapy can be delayed too long. According to some of my friends in the United Kingdom, this study reflects the pattern of care in the National Health System. For physicians operating in that environment delayed hormonal therapy may be risky."

This article certainly demonstrates the divide in opinion. Dr. Hardman had referred to the fact that those who adhered to the immediate treatment school of thought were predominantly on this side of the Atlantic Ocean, whereas the deferred school of thought existed predominantly in the United States, though not exclusively since clearly Mr. Walshe is in the latter school, as indeed are Mr Ryan and Mr. Murphy. But Mr. Murphy did say quite clearly that in the case of the plaintiff, while in July 2001 he might well have recommended deferred treatment, he would have monitored him closely and discussed options for treatment with him. In any event, there appears to be something of an Atlantic divide in the two schools of thought, and the reference to the deficiencies in follow up referred to by Mr. Walshe, presumably refers to a resource factor relevant to the National Health Service in England, compared to the United States, and that these resources do not permit as comprehensive a follow up, hence treating doctors in England tend to treat early, since they cannot monitor closely within their resources. However, this is only a comment by Mr. Walshe, and one would need far more evidence of that particular matter before drawing any conclusions.

Journal of Urology, June 1998, Vol 159, page 2105:

This is a letter to the editor by Mr. David Kirk, a Consultant Urologist for the MRC Prostate Cancer Working Party Investigators' Group. He is commenting on Walsh's comments in the article to which I have just referred. He makes the point that the article on the MRC study to which I have already referred (and of which Mr. Kirk is one of the listed authors), was to present the data in the hope that it would be discussed and "not to make definite recommendations concerning immediate or deferred treatment from data that remain a little immature."

In the letter he also takes issue with Mr. Walsh's apparent criticism of the study on the basis of inadequate follow up protocols, and he states that in fact "at most centers (sic) in the United Kingdom such follow up occurs at 3 to 6-month intervals depending on disease stage and progression."

Beneath that letter there is a response from the editor (Mr. Walsh) who maintains his position as to adequacy of follow-up, and remains skeptical about the conclusions of the MRC study.

New England Journal, 1999, Vol 341, page 1837-1838:

This is another article co-authored by Mr Patrick C. Walsh, MD, together with a Mr. Eisenberger, both of John Hopkins Medical Institutions, Baltimore. The article states that there is no conclusive view that early hormone treatment increases survival. Mr. Whyte submitted that nevertheless this article did not amount to a dismissal of the MRC study findings, but merely indicated that the matter was not finally concluded.

The Lancet, March 1997, Vol 349, page 1552, M.C. Bishop:

Dealing with the question of early or deferred treatment, he expresses the view that "exhortations to treat all advanced prostate cancer immediately by hormonal manipulation and high-grade localized disease by radical prostatectomy or radiotherapy are as yet misguided…………the researchers would be the first to admit that the conclusion that early hormonal treatment will increase survival and reduce the risk of serious complications should be made only tentatively."

Mr. Bishop also had misgivings about the follow-up protocols in the MRC study. I should point out that Mr. Whyte did point out that in the case of the MRC study; the methodology of the study would have been scrutinized in advance and approved.

Blue Cross and Blue Shield Association (an Insurance Company) Report entitled "Relative Effectiveness and Cost-Effectiveness of Methods of Androgen Suppression in the Treatment of Advanced Prostatic Cancer, 1999:

Mr. Whyte submitted that this report was of limited value in the debate since its focus appeared to be on the cost-effectiveness of treatment from the perspective of insurers paying for such treatment. However, Mr. Keane maintained that three key issues dealt with in this report had nothing to do with cost-effectiveness, and that its conclusions were relevant to the debate. Without going into this study in too much unnecessary detail, its conclusion in relation to the advantages of immediate versus deferred treatment is:

"For patients who are newly diagnosed with locally advanced or asymptomatic metastatic disease, the evidence is insufficient to determine whether primary androgen suppression initiated immediately at diagnosis improves outcomes compared to androgen suppression deferred until clinical signs or symptoms of progression."

This report relies on the two VACURG studies from the 1960s for this conclusion, as well as the MRC study. However, in relation to the VACURG studies, Mr. Whyte highlighted the fact that when these studies were carried out, androgen blockade drug treatment was not available, and questioned their relevance in the current debate. In relation to the MRC study, this report stated that the benefits of immediate treatment were confined to the subgroup described as "M0" (i.e those patients who had no evidence of metastatic disease which is confirmed by a bone scan). It will be noted that by July 2001 the plaintiff had not had a bone scan to confirm non-existence of metastases as of that time), but Dr. Hardman indicated that in his view, the plaintiff would have been in that category had a scan been done. Mr. Keane pointed to the fact that this report concluded that there was insufficient evidence to conclude in any final way that there was advantage to be derived from immediate treatment upon diagnosis.

"A Structured Debate: Immediate versus Deferred Androgen Suppression In Prostate Cancer – Evidence for Deferred Treatment"- Walsh et al.:

This is an article authored by Patrick C. Walsh, Theodore L. DeWeese, and Mario A. Eisenberger, two of whom I have already referred to above. The purpose of this article is described therein as to "present a structured debate supporting the premise that immediate hormonal intervention has not been conclusively shown to provide survival advantage in the management of prostate cancer."

This is a very comprehensive examination of a number of different studies, and data, including the two VACURG studies, the MRC study, the ECOG study and some others. Much of the expert evidence in this case focused on this so-called "Structured Debate", and each side claimed parts of it to support its case and to damage their opponent's case in relation to the debate. The stated conclusion of this article is as follows:

" Because hormonal therapy is associated with the development of irreversible resistance in virtually all patients, it does not cure, there is usually a long interval from first prostate specific antigen elevation to the development of metastatic disease, and hormonal therapy has profound side-effects and is expensive, delayed treatment is recommended in men with biochemical relapse following surgery or radiotherapy. Patients should be strongly encouraged to enter clinical trials to answer this question."

The article also stated that the results show that in "patients with Tx, Nx, M0 or M1 disease, who do not receive other primary therapy there is no demonstrated survival advantage to immediate hormonal therapy. Dr. Hardman disagreed strongly with this statement. The article also states that early hormone therapy may in fact facilitate the growth of androgen independent cells, and in effect speed up mortality, but also points to other data that suggests the opposite to be the case.

There is really no need to detail this report further. There is a great deal more in it and a great deal of evidence has been given by witnesses from both sides, and there is certainly no consensus between them. Luckily this Court does not have to reach a conclusion and decide which side of the medical argument is correct. However I am satisfied that while there is an argument to be made on each side, and therefore each is a respected school of thought on the subject, the fact of the matter is that this particular plaintiff, who had a high PSA level in July 2001, had options as to which treatment might be most beneficial to him. Those options would undoubtedly have been considered carefully by Mr Ryan and discussed as fully as necessary both as to potential benefit, as to potential downside in terms of side-effects and complications later on. In addition I am satisfied that even if treatment was to be deferred following these discussions, there is little doubt but that Mr Ryan would have, or at least ought to have, monitored the plaintiff closely. If he had done so, the spiraling PSA level would certainly have been picked up before December 2001, and treatment options could have been considered on an ongoing basis, and an optimal time for the commencement of hormone treatment could have been agreed or worked out. The plaintiff was deprived of this opportunity to be part of the decision-making process in relation to his treatment since by March 2002, there were no options open to him. The path to be taken was clearly defined at that stage.

In relation to the academic debate, I believe there is ample support for the plaintiff's belief that in all probability he, given his specific condition, at least had a more than 50% possibility that immediate hormone treatment in July 2001 would have been beneficial. Such treatment would have to have been discussed with the plaintiff, and I believe that if Mr Ryan had failed to discuss these options with the plaintiff in July 2001, he would have been in breach of his duty of care. I am not going so far as to say that if Mr Ryan recommended deferred treatment to the plaintiff, and the plaintiff took that advice, that Mr Ryan would be negligent in so recommending. I am simply pointing to the need to have the options clearly placed before Mr Ryan so that an informed decision could be made by the plaintiff in relation to the options. It is always open to a patient to not take advice from his doctor once he has been fully informed as to all relevant considerations – especially in a situation such as the plaintiff's where there is no unanimity in medical opinion as to the correct course of treatment.

Conclusions:

The first named defendant is employed by the second defendant as, and is, a consultant urologist. The plaintiff's counsel had some difficulty with the description of Mr Ryan as a consultant urologist, since his appointment was not through the usual process of appointment for consultants, but nothing turns upon Mr Ryan's particular route to his employment. What is important is that he is practising as, and is recognised by his peers to be, a consultant urologist, and therefore his patients are entitled to expect treatment, including diagnosis, which is of highest calibre or expected of a specialist in his particular field. The duty of care attaching to such a specialist is therefore very great indeed, having regard to the serious consequences attaching to decisions made and advice given by him, and in the light of the particularly dependent nature of the relationship between the specialist and his patient, the former being the person who is possessed by virtue of his calling and skill, of all the knowledge upon which decisions affecting the latter must be based. The standard of that duty of care to an individual patient cannot be reduced simply because of pressure of work on a particular specialist or under-resourcing of the hospital facility generally. In these events, it may be possible that the hospital or the Health Board, rather than the specialist working within the hospital or health board, might carry a greater share of responsibility for any negligence, but that does not alter the level of care which a patient is entitled to expect when attending for diagnosis and treatment. In any event, neither pressure of work nor under-resourcing are features in the present case. In this case, neither the first nor the second defendant in fact disputed that the plaintiff was entitled to that level of duty of care. Neither can it be disputed that the plaintiff cannot be presumed to have any prior knowledge regarding the nature of his ailment, what possible diagnoses might be open, what tests might be appropriate, the significance of any such tests, or any possible or appropriate treatment. This feature distinguishes the relationship of doctor and patient from that which exists in some other relationships such as that of master and servant, where a finding of contributory negligence can be made against an employee who has acted in a way which perhaps lacked ordinary common-sense, or was contrary to some training which he had received. In the doctor/ patient relationship there is a total reliance placed by the patient upon the doctor. I will return to this question later when dealing with the question of contributory negligence.

As we know, the plaintiff went to his general practitioner, Dr. Motherway, when he was back in this country from Saudi Arabia at the end of June 2001. At the time he was suffering from urinary difficulties which included difficulty in passing urine. Dr. Motherway performed a digital rectal examination, noting that the prostate was extra-sensitive, and referred his patient to Mr Ryan, the second named defendant, with the usual type of referral letter. When the plaintiff attended at the hospital he was suffering from almost total urinary obstruction, but he was not suffering from any fever. So, following an initial examination by a junior doctor, he was admitted, and a urethral catheter was inserted in order to evacuate the bladder, and allow for ongoing discharge of urine via that catheter. He remained in hospital until his discharge home on the 2^nd July 2001. Before the plaintiff was allowed home, however, the urethral catheter was replaced by Mr Ryan by what is called a supra-pubic catheter. This is inserted, not through the urether, but through the skin above the pubic bone. That supra-pubic catheter was later removed on the 12^th July 2001. While in hospital, Mr Ryan examined the plaintiff and had various tests carried out. The plaintiff was discharged from hospital on 2nd July 2001, and was due to be seen again by Mr Ryan at the outpatients department in two weeks' time, but he in fact saw him on 12th July 2001. On this occasion Mr Ryan diagnosed the plaintiff's ailment as acute prostatitis and prescribed a 90 day course of antibiotics. I am satisfied that the plaintiff told Mr Ryan that he was going away to Saudi Arabia shortly after that visit. I am also satisfied on the balance of probabilities that Mr Ryan did not at that meeting tell the plaintiff that he should have a further PSA Test carried out within six weeks. The plaintiff is absolutely sure about that and I accept his evidence, because the evidence to the contrary, namely that which has been given by Mr Ryan, is not convincing, even though there is a reference in the letter to Dr. Motherway, incorrectly dated 10th July 2001, and of which I have seen only an unsigned copy (since Dr. Motherway was not called as a witness, and the original letter was not produced to the Court) to the fact that Mr Ryan was going to arrange another PSA test in six weeks' time. But I must conclude that this second test was only to confirm a diagnosis of acute prostatitis, since, if the PSA level had returned to normal, it would mean that the prostatitis infection had reacted positively to the antibiotics which had been prescribed. There is nothing contained in that letter to Dr. Motherway which suggests he had considered that there was any suspicion that the plaintiff might be suffering from prostate cancer. This is not mentioned at all. Therefore the second PSA test was not so that Mr Ryan might investigate further in the light of the result, but was simply a routine follow-up test, which would confirm, as far as Mr Ryan was concerned, that the prostatitis was clearing up, if not completely cleared up, bearing in mind that the course of antibiotics was apparently a 90 day course, and not just a six week course.

For this reason, I am not satisfied that Mr Ryan's evidence, including that letter to Dr. Motherway, is sufficient to disturb the plaintiff's own evidence that a second PSA test was not mentioned to him on 12th July 2001. My conclusion is also consistent with the fact that Mr Ryan did not give the plaintiff any letter regarding such a test which the plaintiff could bring to his doctor in Saudi Arabia in order to explain why such a test was being sought. It is also consistent with the fact that, as I accept to be the case, that the plaintiff never even became aware of even what a PSA test was, or what might hang upon the result of a PSA test, until March 2002 when he was told that he had prostate cancer. I am satisfied that if Mr Ryan had even considered a possibility on the 12th July 2001 that the reading of 168ng/ml, and the other symptoms shown by the plaintiff, might be pointing to something more serious than prostatitis, he would have had some sort of discussion with him about that, especially given that he knew that the plaintiff was returning to Saudi Arabia shortly thereafter, and he would have at least performed himself a digital rectal examination. Mr Ryan has said that even if he had those suspicions on 12th July 2001 he would not have to told the plaintiff of those fears on that date in case he was proven to be incorrect. But in circumstances where the plaintiff was leaving the country, I cannot accept that he would not have been able to have some sort of discussion with the plaintiff in order to explain, or at least alert him to, the importance of having a PSA test done in six weeks' time, and I am sure that Mr Ryan would and could have written a letter of referral known to any doctor in Saudi Arabia when the plaintiff would be consulting.

So, I am satisfied that while Mr Ryan may have intended to arrange that the plaintiff would have a second PSA test done six weeks' time, he did not tell the plaintiff either to have it done, or explain in any way what such a test was. It was simply to confirm in a routine way that the prostatitis had cleared up. What happened simply was that a diagnosis of prostatitis was made, antibiotics were prescribed which Mr Ryan had no doubt would clear it up, and he longer had any concerns about the plaintiff which would have otherwise insured some ongoing contact, either with the plaintiff directly, or even through Dr. Motherway. I am satisfied about these particular factors without having to draw any inference from the fact that Mr Ryan made no contemporaneous note of requiring a second PSA test, and that he later in December 2002 altered those notes after he had received a letter from solicitors acting on her behalf of plaintiff. I shall return to that particular matter later in my judgment.

I am also satisfied that there is no doubt that the diagnosis of prostatitis was an error on the part of Mr Ryan. That such a diagnosis was incorrect, as matters transpired, is, as it must be, accepted by Mr Ryan. I am also satisfied that in so diagnosing prostatitis, Mr Ryan was negligent, and I do so on the basis of having heard the evidence of Dr. Shah, and Dr. Hardman, and in the light of the clinical definition of prostatitis, and the symptoms shown by the Plaintiff in June/July 2001. No specialist urologist exercising proper skill would reasonably have diagnosed the plaintiff as suffering from prostatitis. Indeed, Mr. Murphy, who was also a consultant urologist working at Beaumont Hospital, and who was called as an expert witness on behalf of Mr Ryan, while in his direct examination described Mr Ryan's diagnosis of prostatitis as "reasonable", had to concede under cross examination that he himself would probably not have diagnosed prostatitis, and that there was no evidence of prostatitis, and, he accepted that the plaintiff displayed none of the symptoms which would point to such a diagnosis. Therefore, not only was Mr Ryan's diagnosis wrong, but it was negligently wrong, in the sense that it was a breach of duty of care to which I referred earlier. It was not to diagnosis which another specialist, exercising normal and reasonable skill would have made.

In his direct evidence, Mr Ryan maintained that a diagnosis of acute prostatitis, while it turned out to be wrong, was a possible correct diagnosis at that time. When cross-examined about the basis for that, given the particular symptoms displayed by the plaintiff, Mr Ryan put forward for the first time, not having done so either in the pleadings or in his direct evidence, the notion that the symptoms of the plaintiff, while not consistent necessarily with acute prostatitis itself, were similar to those found in a form of prostatitis which he called "cysto-prostatitis". He also stated his view that a diagnosis of prostate cancer would not preclude a diagnosis of concurrent prostatitis. In other words, even though the plaintiff was in fact suffering from prostate cancer, he could also simultaneously have been suffering from prostatitis. Again this was stated only under cross examination, and appears nowhere in the pleadings or in his direct examination. It is sufficient for me to say that I conclude that neither of these possibilities, even if they can exist, have been shown to have sufficient probability according to any of the evidence, to displace my earlier conclusion that by making a diagnosis of acute prostatitis, to the exclusion of any other possibility, Mr Ryan was negligent. It was an error, and my view, for the reasons which I have stated, must be regarded as negligent error.

However that is not an end of the matter because the treatment prescribed for prostatitis, namely a course of antibiotics, would not and did not cause any personal injury to the plaintiff. The real consequence as far as the plaintiff is concerned, is that by the diagnosis of acute prostatitis to the exclusion of any other ailment, the plaintiff was deprived at that stage of the possibility of treatment and advice appropriate to his real ailment, namely prostate cancer. For that consequence to be one for which the plaintiff is entitled to compensation, the plaintiff must do more than show that the diagnosis of prostatitis was wrong. He must also show that Mr Ryan, as his consultant urologist, ought to have formed a view at least by 12th July 2001, that the symptoms of the plaintiff, and the test results, especially the PSA reading of 168ng/ml, were indicative of at least the possibility, if not the probability of prostate cancer and taken appropriate steps then to confirm the position by appropriate further investigation by digital rectal examination, and thereafter by a trans-rectal ultrasound, and biopsy.

Even if the plaintiff, is not in a position to satisfy the court, on the basis of probability, that Mr Ryan ought, as of the July 2001, to have at least suspected and therefore investigated the possibility of prostate cancer, the plaintiff also has an opportunity of establishing negligence on the part of Mr Ryan, in relation to the steps which he took following the meeting on 13th December 2001, to notify the plaintiff of the concerns which he had and which arose from the discovery of a PSA level of 227ng/ml, which had shown up on the PSA Test which had been carried out in 13^th December 2001. However I am satisfied that Mr Ryan was negligent when, by making a diagnosis of acute prostatitis he did so to the exclusion of all other possibilities. Mr. Shah, on behalf of the plaintiff, has said that there was no basis for the diagnosis of acute prostatitis, and that the symptoms and the high PSA level of 168ng/ml in July 2001 were pointing to a diagnosis of prostate cancer. Mr. Murphy on behalf of the defendants eventually conceded that he would not have diagnosed acute prostatitis either. So I must conclude that there was no reasonable basis for that diagnosis. That being so, one must ask what was the diagnosis which a doctor of Mr Ryan's qualification, skill and expertise ought to have made, or what diagnosis would another doctor of his qualifications and experience, and exercising an ordinary and reasonable level of skill, have made. There really is on the evidence only one answer to that, namely, that if it could not have been acute prostatitis, Mr Ryan had to investigate the possibility of prostate cancer, and as of 12th July 2001 do what was normally done for that investigation, such as a digital rectal examination, trans rectal ultrasound, and biopsy. This would have very quickly told him what he needed to know at that stage, and no doubt would have resulted in a full discussion of the ailment with the plaintiff, when the plaintiff would have been advised as to what form of treatment was appropriate and when it ought commenced. I have no doubt also in the light of the evidence of Mr. Hardman, and also in fact of Mr. Murphy, that whether or not the early hormone therapy was commenced in July 2001, the plaintiff would at least have been closely monitored. A repeat PSA test would undoubtedly have been carried out in six weeks' time, or earlier, and since he knew of the plaintiff's impending departure for Saudi Arabia, a letter of referral would have been given to the plaintiff, so that whatever doctor he saw in Saudi Arabia would know his medical history and the purpose of his being tested. Indeed, such a diagnosis and discussion, might well have resulted in the plaintiff deciding not to return to Saudi Arabia at all, in favour of remaining either in Ireland or in England for his treatment. However I can only speculate in that regard, since the plaintiff did not give any evidence in that regard.

Mr Ryan would have had to have a very full discussion with the plaintiff of the advantages and disadvantages of a hormone therapy, and when it ought to be commenced. That discussion would also have led inevitably to the question of whether it was preferable to start hormone treatment immediately, or whether it was better to postpone it until there was evidence of bony metastases. The adverse side effects of hormone treatment (e.g. impotence) would also have been discussed, so that the plaintiff, in consultation with his doctor, could make an informed decision on his future treatment in the light of the relevant facts and information available in relation to that disease and its treatment.

By March 2002 when the plaintiff was first made aware that he had prostate cancer, he was being told information that was available, if correctly diagnosed, some eight months earlier. But by March 2002, the PSA Test, the biopsy, and the bone scan which was carried out, showed the disease to be extensive and aggressive. In those circumstances, no choices of treatment, or its timing, were open to the plaintiff, except the stark choice between no treatment, and the bilateral orchidectomy and total androgen blockade treatment which were in fact commenced on 26th March 2002.

A reasonable consequence of this situation is, firstly, in accordance with the plaintiff's evidence which I accept, that he was caused great anger and distress and a feeling of being totally that down. That distress is not the distress caused by being diagnosed as suffering from cancer. That distress is separate, and what would be reasonably suffered by any person, and would not be dependent on any negligence on the part of the treating doctor. The plaintiff's anger and distress and feeling of being let down is accounted for, perfectly reasonably in my view, by the fact that a mistake had been made in his diagnosis, which resulted in the denial of any choices in the manner and timing of his treatment. At the time, in March 2002, I have little doubt but that the plaintiff will have reacted on the basis of a presumption that the delay in knowing that he was suffering from prostate cancer had reduced his chances of recovery, or shortened his life expectancy. That would reasonably have been his state of mind in March 2002, although he was not specifically asked that, so I have no evidence of that as such. But the plaintiff would certainly not have been aware at that time of the academic debate among medical experts as to the possible advantages, in some cases, of a delay in hormone treatment not adversely affecting the life expectancy of the patient.

Whatever the plaintiff did or did not know, there is no doubt that the distress caused to the plaintiff in March 2002 includes, as an additional component to the normal distress of being told that he was suffering from cancer, distress and anger at learning that he had been mis-diagnosed in Julyn2001. I cannot accept as reasonable, the defendants proposition that the court must counter-balance against that distress and the other consequences, the fact that by not knowing from July 2001 until 2nd March 2002 that he was suffering from prostate cancer, plaintiff was in effect better-off and able to enjoy a better quality of life during that time because he did not have that worry on his mind.

First of all, the plaintiff has said, and I accept, that he would rather have known the true and full facts in July 2001, so that he could plan the remainder of his life, which would include the making of decisions in relation to his treatment accordingly. As things turned out, plaintiff has been presented with a fait accompli. A person has a right to know that he is suffering from a terminal illness, at the earliest point in time at which that knowledge is available, unless perhaps he has waived that right in advance by making it known to those close to him that he does not wish to be told. In my view, it would not be appropriate for a doctor to decide in a unilateral way, that it would be better to save the patient from the upset of knowing he was going to die from his disease, until nearer the point of death. That been so, it cannot be appropriate or reasonable for the defendants to claim a benefit from a situation which has arisen through their negligence, namely that the plaintiff was able to live those eight months in the way he wished, without knowledge of the fact that he was suffering from a terminal illness. Mr Ryan has made the point that by 12th July 2001, he could not have known that the plaintiff had cancer, since at best the symptoms merely pointed to that disease, and that it would not have been in the plaintiff's best interests to have told him that he may have prostate cancer. But that is not the point really. Mr Ryan was not considering at that point in time even the possibility of prostate cancer. He was treating, as far as he was concerned, a case of acute prostatitis, and in my view he cannot now view the events and facts with the benefit of hindsight, and rewrite history by saying that it would not have been a benefit in any event to tell the plaintiff of his concerns. If Mr Ryan had suspected that cancer was a possibility, it is reasonable to assume that, but for his negligence, he would have acted differently, by being more proactive in his pursuit of definite information so that a final and conclusive diagnosis could be made and options discussed and considered. As it happened, he did nothing of a proactive nature in that regard. The plaintiff's file was simply put away, and nothing happened until the plaintiff himself, on the 2nd December 2001, went back to see Mr Ryan on his return from Saudi Arabia, and only then did Mr Ryan think again about his second PSA test. But even at that stage, such a test was only for the purpose of confirming that the prostatitis had cleared up, as he fully expected, especially since the plaintiff expressed himself as being well and symptom free. So, by the 2^nd December 2001 Mr Ryan did not have the possibility of cancer on his mind at all. So, I accept that while he arranged to have the second PSA test done on that visit, he did not on the balance of probabilities, discuss what a PSA test was, or what significance might attach to a second test showing a high PSA level. I do accept that he told the plaintiff that he either could or should contact him in relation to the results, but Mr Ryan cannot, having done so, then sit back safe in the knowledge that he has now shifted to the plaintiff the responsibility for his future state of health and treatment, even to some extent. I accept that, when the plaintiff left Mr Ryan on 13th December 2001 he knew that he was supposed to contact Mr Ryan about the result of the test, and that it was not Mr Ryan who was to make contact with him. But I also accept that at that point, the plaintiff did not know, and was not told, what purpose a PSA test served, and was not given in any indication that the result was important. Indeed, as I have also said, even by the 13th December 2001 Mr Ryan was simply confident, having spoken again to the plaintiff who complained of no symptoms, that the acute prostatitis had cleared up satisfactorily in the intervening period from July 2001 to December 2001, and that it will have been as great a surprise to Mr Ryan, as it was a shock to the plaintiff, when the result of that PSA test showed a very great increase he has a level from 168ng/ml to 227ng/ml.

I am satisfied on the basis of a balance of probabilities of the following:

•    Mr Ryan was negligent in diagnosing prostatitis to the exclusion of any other possibility;

•    He did not ask, or arrange that, the plaintiff would have a second PSA test done in 6 weeks as stated to Dr. Motherway in the letter bearing the date 10^th July 2001;

•    He did nothing further until the plaintiff saw him again on 13^th December 2001;

•    On 13^th December 2001 he arranged to have a second PSA test carried out, and told the plaintiff he should contact him for the results;

•    AS far as Mr Ryan is concerned, the second PSA test was simply to conformthat the prostatitis had cleared up with the antibiotic treatment;

•    At no time did Mr Ryan ever inform the plaintiff of what a PSA test was, and what might hang on the results;

•    At no time did Mr Ryan ever inform the plaintiff that there was a possibility that he might have prostate cancer, and that the reason for not doing so is that such a possibility was never in Mr Ryan's mind, since he was already satisfied that it was acute prostatitis;

•    When the result of the second test came in December 2001, Mr Ryan attempted on three occasions to speak to the plaintiff by telephoning him at him at his Cork number, but did not attempt to speak to Dr. Motherway to discuss the difficulty he had in contacting the plaintiff, or to inform Dr. Motherway of the result of the PSA test;

•    He dictated a letter to the plaintiff before the Christmas break, but it was not typed up and signed by him until the 7^th January 2002;

•    I am not satisfied that Mr Ryan ensured that this letter was posted, even though he may have assumed that it would be posted. I cannot be certain that it was posted immediately after it was signed, since it did not arrive until 10^th March 2002, and when it arrived, the envelope bore no postmark. However, on the balance of probabilities, I am of the view that Mr Ryan himself believed that the letter had been posted;

•    Mr Ryan had in place within his office routines no method of diarying forward important matters in order to track a case file, such as the plaintiff's, and that this meant that unless the plaintiff made contact with Mr Ryan following receipt of the letter, there was no way of ensuring that Mr Ryan himself made a follow-up enquiry in case the letter had not been received, or for any other reason. The plaintiff's file was simply put away and not thought of again, even though it was essential that the matter be followed up with urgency;

•    Since Mr Ryan remained the only person possessed of the result of the PSA test, the responsibility remained at all times on him to ensure that the plaintiff received the information, and that in view of the lack of office procedures as outlined in the previous paragraph hereto, Mr Ryan was negligent in failing to realize after a reasonable time that the plaintiff had not contacted him, and was negligent in not attempting to ascertain the plaintiff's telephone number in Saudi Arabia and telephoning him. This is so because of the particularly urgent matter which needed to be communicated to the plaintiff, and the details of which were known only to Mr Ryan;

•    The plaintiff ought to have made contact with Mr Ryan, but was not guilty of contributory negligence by not doing so, since Mr Ryan never informed the plaintiff of what a PSA test was, and what consequences hung on the results. If he had done so, I am certain that the plaintiff would have contacted him for the results;

•     The negligence of Mr Ryan resulted in the plaintiff not becoming aware that he had prostate cancer until eight months later than he would otherwise have known this;

•    the plaintiff was deprived of an opportunity to have a discussion between July 2001 and March 2002 with Mr Ryan, or indeed any other medical person he wished, about his disease and the alternatives for treating him;

•    the arrival of the news in March 2002 that he was suffering from advanced prostate cancer was a great shock to the plaintiff, as was the news that this diagnosis could have been made in July 2001, but had been missed by Mr Ryan;

•    the plaintiff has reasonable grounds for believing that his life expectancy is now less that it would have been had the correct diagnosis been made in July 2001, and that this is causing him and has caused him great upset;

•    there are two well respected schools of thought within the medical profession as to the pros and cons in general of immediate versus deferred hormone treatment in cases of prostate cancer, and that it is not negligent to treat a patient in accordance with either;

•    however, it is more likely than not that in relation to this particular plaintiff's disease as of July 2001 that had the correct diagnosis been made, the plaintiff would have had a full discussion with his treating consultant when the advantages and disadvantages of each method of treatment would have been explained in a way which the plaintiff could understand, and the plaintiff would have been able to participate in the decision-making process regarding his treatment and future, and that in the circumstances of this case he was deprived of that opportunity;

•    if the plaintiff had, in consultation with his treating consultant, opted for a deferral of hormone treatment until the disease had progressed, the plaintiff would nevertheless have been monitored closely. He would in other words have been kept under constant observation in order to see how the disease was progressing;

•    it is not reasonable, on the evidence before me, to assume that the delay of eight months in the correct diagnosis has had no adverse impact on the plaintiff's life expectancy and quality of life, and it is not reasonable for Mr Ryan to claim that by knowing that he had cancer, he was better off in the sense that he could go about his life during that eight months free of the worry of knowing that he had a serious condition. That would be to deny the plaintiff his basic right to be informed about a serious matter regarding his health, and his right to plan his future in the light of that knowledge;

•    On the balance of probabilities, I am of the view that having been deprived of an opportunity of considering having immediate or fairly immediate hormone treatment in the summer of 2001, a reasonable consequence of that is that the plaintiff has suffered distress by having a reasonable belief that his life has been shortened by anything from 8 months to two years, and that on the evidence before me there is a reasonable basis for that belief. I cannot make a definitive conclusion in relation to whether his life has been shortened, or by how long, simply because the whole question is the subject of such debate, as I have shown, but I can conclude that on the balance of probabilities, the fear that his life has been shortened is a reasonable fear, and the distress caused to the plaintiff in that regard is reasonable, and for which he entitled to be compensated.

As far as damages are concerned, I propose to award a single sum to take account of the distress caused to the plaintiff as a result of the negligence of the first named defendant. The plaintiff's evidence was that on receiving the letter on 10^th March 2002 he panicked, and later he was very angry and felt let down about the missed diagnosis, and he was of the view that what he now faces was very different in terms of survival from it might have been. Of course, whether his life has been shortened is a matter perhaps we will never know. At the moment Dr. Hardman describes the plaintiff as being well. His PSA levels are satisfactory, and he is not suffering symptoms. But as we know, this will change as time marches on. I have no doubt that the plaintiff has suffered great anguish and distress on account of the knowledge that he could have been diagnosed sooner. All the academic medical debate about the advantages and disadvantages of immediate versus deferred treatment, are of little comfort to the plaintiff, who, in my view perfectly reasonably, has reasonable grounds for fearing that his life has been shortened. This is particularly significant in the case of an otherwise healthy man in his mid-fifties.

I cannot award compensation in relation to the pain and suffering which is associated with the treatment he has received for his cancer, since that is something he would no doubt have had to undergo in any event. But in relation to the distress and other factors to which I have referred, I award a sum of €45,000, and I will enter judgment for this sum against both defendants, and award the plaintiff his costs of these proceedings, to be taxed in default of agreement, and to include all reserved costs (if any).