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Duty of Care and Duty to Mitigate

posted 2 years ago

This case relates to a gentleman who had a particular condition called lichen planus inside his mouth for at least 15 years. He had been followed up in a special dysplasia clinic and had a number of biopsies over the years, which confirmed severe dysplasia; however, he did not wish to have any surgery carried out.

He was seen in 2012, and again, severe dysplasia was noted. He was booked for a routine review in six months.

After three months, he got a letter from the Administrative Department of the hospital stating that the six-month appointment had been cancelled and “attached to this notice is your new appointment”. They also gave an email address and a telephone number in case of any queries.

The plaintiff acknowledged that he received the letter, but that he did not actually receive the new follow-up appointment, and this was confirmed by the Medical Records Department of the hospital. The new appointment was not, in fact, generated.

After three years, he began to notice some swelling in the area on the inside of his mouth, which developed further over four to five months to become a raised lesion that bled on contact. He went back to the hospital, where he was diagnosed as having a cancer in the area, and he required extensive surgery to his face, jaw and neck.

An internal hospital audit confirmed that his appointment had been cancelled, but no new appointment generated, and they accepted responsibility. There was, therefore, an obvious breach of the duty of care by the administrative unit in the hospital, not by medical staff.

However, this gentleman had been followed up on a regular basis for many years, including multiple biopsies. He had been offered surgery early on but had refused. He agrees he had been told to watch for “lump, bumps, etc”.

He received the letter from the hospital, but did not contact them when no appointment was in fact attached, and indeed did not do so for over three years, even though he knew that the lesion might become cancerous. Further, he even waited five to six months after he was aware of a lump in his cheek.

This is a classic example of contributory negligence. There was no breach of the duty of care by medical staff, but there was by the administration by way of an administrative error at the Dysplasia Clinic. However, this was significantly compounded by the fact that, when the plaintiff did not receive an appointment as stated on the front of his cancellation letter, he did not contact the Department and did not do so for three years, even after he had noticed the swelling in his mouth.

It was agreed that the breach of the duty of care by the plaintiff towards himself was far more significant in terms of his health than the breach by the administrative department in not sending a further follow-up appointment.

As in other legal issues, the plaintiff has a duty of care towards themselves to mitigate any consequences of another’s act of omission or commission, and in some cases such as this, the level of contributory negligence may be of more long-term significance than the initial breach of duty of care.

MDU figures for 2020 show that fewer than one in six actions in medical negligence actually succeed, with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.

Initial screening is, therefore, essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to court with no chance of success. This is stressful for both the client and their legal adviser, and indeed for the medical personnel involved.

For fast and effective screening of all potential medical negligence cases, contact Peyton Medico Legal Services now on +44 (0)28 87724177 or email [email protected]


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