Pleadings

"In or about late October 1997 the pursuer noticed a hard lump on her right breast, just below the nipple. The pursuer was conscious of a change in shape and appearance of the nipple. The pursuer was aware of the importance of breast examination and normally checked her breasts for lumps. The pursuer was concerned that she could have breast cancer. She consulted her General Practitioner, Dr C J Mackintosh, Hunter Health Centre, East Kilbride. He referred the pursuer to Mr Thomson, Consultant Surgeon at the Breast Clinic at Hairmyres Hospital East Kilbride. The pursuer attended the clinic on 24^th November, 1997. The pursuer was seen by Mr Ali who was at that time a Surgical Registrar. He examined the pursuer and confirmed the presence of a well circumscribed lump below the right areola which was tethered to the overlying skin. This is a classic presentation of breast cancer. In such circumstances a cancerous lump must be ruled out. Mr Ali arranged a mammogram. This was reported by Dr Rosemary Weir as showing no suspicion of malignancy. All Surgeons working in breast units are aware that mammogram is only one of three investigations required where a patient presents with a breast lump. All Surgeons working in breast units are aware that a negative mammogram does not rule out malignancy. It is well known that mammograms in pre-menopausal women will miss 30% of breast cancers. The report of the mammogram indicated that ultrasound examination was advised. The lump was said to be clinically palpable and to exhibit skin tethering, a classic description of a cancerous lump. No ultrasound examination was arranged by Mr Ali, despite this instruction. No attempt was made by Mr Ali to obtain a sample from the lump either by fine needle aspirate, core or open biopsy. All ordinarily competent Surgeons working in a Breast Unit are aware that where a woman presents with a breast lump triple assessment is required before a malignant lesion can be excluded. Triple assessment includes clinical examination, mammography and cytology or a form of biopsy. The pursuer was given an appointment for review in 3 months. The pursuer re-attended the clinic on 23^rd February, 1998 and was seen by Mr Ibrahim who was at that time an SHO in Surgery. He also noted a small lump at the outer quadrant of the right breast at 7 o'clock, and that the skin was tethered. He arranged an ultrasound examination of the lump. On 13^th March, 1998 the pursuer underwent an ultrasound examination followed by a fine needle aspirate. A fine needle aspirate takes a small amount of the tissue from the area of the lump for analysis. The sample was poor. The pathology report stated that the appearances were atypical of breast pattern. Following receipt of the cytology Mr Thomson wrote to the pursuer. The pursuer was reviewed at the clinic on 27^th April, 1998 by Mr Morely SHO and arrangements were made for her to undergo an ultrasound controlled biopsy on 15^th May, 1998. On 10^th June, 1998 the pursuer was admitted to Hospital for biopsy of her breast. The procedure was performed by Mr Thomson, who told the pursuer that there was little to worry about. The specimen taken at biopsy was analysed and the report on 16^th June, 1998 confirmed that the pursuer had breast cancer. Arrangements were made for the pursuer to attend for further surgery which included wide local excision and axillary clearance. The breast cancer had been present since the time of the pursuer's first presentation to Hospital in November 1997. As a consequence of the delay in diagnosis the pursuer sustained the loss, injury and damage hereinafter condescended upon."

"In 1997 it was normal and common medical practice to assess breast lumps by a triple assessment procedure. Said assessment included clinical examination, mammography, and cytology or a form of biopsy. Where clinical examination revealed, as it did in the pursuer's case, a palpable breast mass with tethering to the overlying skin, ordinarily competent medical practice necessitated further investigation. Said investigation included both mammography and an attempt to obtain a sample of the lump for both cytology or pathology. Failure to attempt to obtain cells for cytology, or a core biopsy, or to recommend excision of the lump, would be a course of action which no Doctor acting with ordinary care and skill would have taken. When a Radiologist performing mammography recommends further examination to the Surgical Team requesting the original examination, ordinarily competent Medical Practitioners would act upon such advice, particularly in the presence of a tethered breast lump. When atypical breast changes are demonstrated upon fine needle aspirate, as occurred in the pursuer's case in March 1998, ordinarily competent medical practice would necessitate further urgent investigation of the abnormality, and not a further delay of three months before a definitive biopsy was performed."

"As a result of the delay in diagnosis of her breast cancer the pursuer sustained loss, injury and damage. When the pursuer felt the lump initially she was concerned that she did have breast cancer. She did not feel re-assured after her attendance at Hospital and following examination by Mr Ali. She did not feel that he listened to her concerns and felt he was dismissive. The pursuer was aware that the lump was changing during the period between November and June and also felt that it was increasing in size. She suffered pain in the area and frequently woke from her sleep in distress. The pursuer was convinced that she did have cancer and spent many hours lying in the dark in her bedroom crying consumed by an overwhelming fear that she was going to die. The pursuer was extremely distressed when the diagnosis was eventually made. She broke down in tears certain that her worst fears had now been confirmed. She was immediately aware that there had been a delay in diagnosis and treatment of the lump. The pursuer refused to believe that she would not die. As a result of the delay in diagnosis the pursuer has developed an Adjustment Disorder with depressed mood. The pursuer continues to suffer psychologically as a result of the delay in diagnosis. The pursuer has lost all confidence in medical professionals. This will have implications for any treatment she requires in the future. The pursuer has lost self confidence and suffered a loss of self esteem as a result of the delay in diagnosis. The pursuer's marriage broke down as a result of her psychological problems directly related to the delay in diagnosis of her breast cancer. Prior to this the pursuer had been happily married for 28 years. A diagnosis should have been made within a week of the clinic visit on 24^th November. Had the diagnosis been made in November it is likely that the pursuer would have coped with the diagnosis and undergone treatment without any continuing psychological problems. The pursuer required to undergo 18 weeks of chemotherapy commencing on 6^th August, 1998. The sessions of chemotherapy were lengthy and distressing for the pursuer. The pursuer suffered nausea, tiredness and sore eyes which are side effects of the chemotherapy treatment. Had the diagnosis been made in November it is likely that the pursuer would not have required chemotherapy. As a result of the chemotherapy the pursuer lost her hair. This caused her great distress. In the circumstances the sum sued for is a reasonable estimate of the loss, injury and damage suffered by the pursuer."

Submissions of parties
Submissions for the defenders

"When atypical breast changes are demonstrated upon fine needle aspirate, as occurred in the pursuer's case in March 1998, ordinarily competent medical practice would necessitate further urgent investigation of the abnormality, and not a further delay of three months before a definitive biopsy was performed."

Secondly, Mr Ferguson complained of a reference at page 13A to "further investigation" without there being any specification of what that investigation should have involved. He did not accept that it necessarily referred to ultrasound examination, as mentioned at page 6E, given the reference at page 13B to "excision of the lump". Given this reference at page 13B, the defenders were entitled to know what it was that Mr Ali was expected to have done which he did not in fact do. If it was the instruction of ultrasound examination (which it was averred at page 6E was advised by the radiologist in the report of the mammogram carried out in November 1997) then the pursuer should say so. If it was something else then the pursuer should say so. That the pleadings were open to both interpretations meant that there would be problems as to the admissibility of evidence. Thirdly, Mr Ferguson complained about the averment at page 13B that no doctor acting with ordinary care and skill would have failed to attempt to obtain cells for cytology, or a core biopsy, "or to recommend excision of the lump" given that it was no part of the case of fault against Mr Ali (as set out in article 4 of condescendence) that he had not recommended excision of the lump. Mr Ferguson took the word "both" where it occurred before "cytology or pathology" at page 13A to be a typographical error but interpretation of the pursuer's pleadings was not made any easier, he said, by the reference to "cytology or pathology" and then "core biopsy". Up until this point Mr Ferguson had focused on the pursuer's averments of fault. He turned to her averments of loss. In his submission, these too were of doubtful relevancy. Again, he had three criticisms to make. First, the whole of what was said to have been a delay was laid at Mr Ali's door whereas no criticism was made of what had happened after 23 February 1998 when the pursuer was seen by Mr Ibrahim (other than the reference to "further delay" at page 13D which was not taken forward to any averment of breach of duty). Indeed, it would appear that Mr Ibrahim did in February 1998 exactly what it is that the pursuer avers Mr Ali should have done in November 1997. Why then was Mr Ali blamed for the outcome of events subsequent to February 1998? What was set out in the pursuer's pleadings is what in fact happened to the pursuer. What was lacking was any explanation as to why any different series of events would have occurred had Mr Ali done in November 1997 what Mr Ibrahim did in February 1998. It was averred, at page 16E, that a diagnosis should have been made within a week of the clinic visit on 24 November 1997. There is, however, a failure to explain why that should have been so. Mr Ferguson's second criticism was of the averment at page 16D: "The pursuer has lost all confidence in medical professionals. This will have implications for any treatment she requires in the future." This, said Mr Ferguson, was entirely inspecific. There was no indication of what treatment was meant. Was it intended to be a reference to the pursuer's treatment in respect of her adjustment disorder? The defenders were left entirely in the dark. They were entitled to have at least a broad indication of what the pursuer maintained was her loss. They had not been provided with that. Thirdly and finally, under this chapter, Mr Ferguson drew attention to the pursuer's averment at page 17B that had the initial diagnosis been made in November 1997 it is likely that the pursuer would not have required chemotherapy. Again, there was no explanation as to why the pursuer maintained that this was so.

Submissions for the pursuer

"Whether this or that special feature - or some combination of special features - amounts to special cause is a question to be determined, not by reference to any legal principle or category, but as a matter of sound discretion, and the discretion rests mainly, and in the first instance, with the Lord Ordinary...".

"The recent revival of interest in jury trial makes it necessary for pleaders to keep in mind that jury trial is an appropriate mode of inquiry only if the pursuer's pleadings are clearly relevant and specific."

Lord Gill then expressed the view that the averments which had come under particular attack in that case (relating to a claim for wage loss and for a loss of employability) were of doubtful relevancy. He then said that absence of clarity as to the relationship between the two claims provided a further reason for these averments being of doubtful relevancy. Then, at 363J, he said this:

"A useful test in these cases is to consider whether on the pursuer's pleadings an adequate and effective direction could be given to, and applied by, the jury on the contentious question. Counsel for the pursuer had difficulty in suggesting a form of direction which would explain to a jury, on the basis of the pursuer's pleadings, how they should calculate the two heads of claim and how they should discriminate between the two."

With all respect to Miss Sutherland my impression was that she was offering an adequate and effective direction test as the touchstone as to whether jury trial was appropriate as the mode of inquiry without taking into account the context where the reference to a test is found in Lord Gill's opinion or taking into account how such a test might be applied. Lord Gill was looking at particular averments: "on the pursuer's pleadings" bearing on a particular issue: "on the contentious question". In his opinion the averments were of doubtful relevancy (in other words they might or might be relevant depending upon precisely what was revealed by the evidence led in support). That could be tested by posing the question as to whether "on the pursuer's pleadings" an adequate and effective direction could be given "on the contentious question", which, in the particular case, was how the two heads of damages were to be calculated and how they were related one to the other. I would accept that doubtful relevancy is likely to give rise to difficulty in giving a direction and that therefore difficulty in giving direction may well be an indicator of doubtful relevancy. For that reason I am not inclined entirely to divorce the question as to whether the pleadings are sufficiently relevant and the question as to whether there would be difficulty in giving directions, which seemed to be the approach suggested by Mr Ferguson. However, one can only ask the question whether on the pursuer's pleadings an adequate and effective direction could be given to, and applied by, the jury on the contentious question, if one has identified, with a degree of precision, a contentious question. In other words, one must be able to focus on a particular issue or topic in the light of the way the pursuer's case is pled. I did not understand Miss Sutherland to focus on any particular topic in the light of the pleadings. Rather, she encouraged me to look at the case as a whole. It was, she said, a very simple straightforward case. As I understood her, it was because Miss Sutherland characterised the whole case as simple and straightforward that she invited me to answer the question as to whether an adequate and effective direction could be given to the jury in the affirmative. In other words, it appeared to me that Miss Sutherland's repeated references to the adequate and effective direction test were really no more than reassertions of her characterisation of the case as being one that was simple and straightforward. She was not, in any way that I was able to follow, pointing me as to how I should apply this test when considering the averments that were under particular scrutiny with a view to determining the issue in her favour. I shall return to Miss Sutherland's characterisation of the case as a simple and straightforward one later in this opinion.

"A properly drawn record is essential in a jury trial, and the points at issue ought to be clearly focused. One wants to avoid wrangling as to the admissibility of evidence. That is undesirable in itself and sometimes operates prejudicially against the party taking objection. ... It seems to me that it is in the interests of all parties that the relevant and substantial points should be stated and clearly stated in the record, and that the facts relied upon, the grounds of action and the pleas-in-law should be adequately presented ...The function of a record is to convey what the case is about and to make the legal issues clear, and it is really intolerable that it should be left to the court, with the assistance of counsel, to try to extricate from the averments what the points in the case are."

In Moore supra at 334 he put the matter this way:

"The subsumption on which a jury trial proceeds is that all questions of relevancy have been disposed of and that the trial is to proceed on the basis of the record, which is looked on as conclusive of relevancy. This is shown by a number of considerations. No judge could exclude evidence from the jury's consideration if the party leading it could show that he had sufficient record for it. So, too, the courts, when invited to send a case to proof rather than to jury trial, are frequently affected by the consideration of the doubtful relevancy of the record, and the courts have frequently emphasised the desirability of records in case going to juries being clearly stated so as to focus for the jury the points in controversy. ...It is only on a relevant record that the proper respective functions of judge and jury can satisfactorily be operated."

without, of course, the benefit of opening speeches. That said, the task of a jury in a civil case which is to do justice as between the parties, assessing evidence on a balance of probabilities, is not quite the same as the task of a jury in a criminal trial which is to determine whether the Crown has proved its case beyond reasonable doubt. If I am correct about my assessment of the relevancy of the pursuer's pleadings then I cannot repel the defender's plea to the relevancy and therefore I cannot allow issues. However, even if I am wrong about that, it appears to me, for the reasons that I have set out, that the pursuer's pleadings present sufficient in the way of difficulty in the assessment of damages as to make the case unsuitable for trial by jury.