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Appeal by oral pathologist and NHSLA thrown out

Leigh Day, who acted for the late Jane Manning, condemns scandalous waste of public funds

Photo: istock

26 August 2009

The Court of Appeal has unanimously rejected an Appeal brought by Kings’ College Hospital NHS Trust and the National Health Service Litigation Authority against a finding by a High Court Judge last year that a Consultant Oral Pathologist, Dr John Harrison, had made a series of errors leading to the death of a 43 year old mother of two.

Mrs Jane Manning was diagnosed with a rare form of tongue cancer in December 1993. She was treated with radiotherapy in 1994. In September 2001 a biopsy of part of her tongue was diagnosed as cancerous. Despite radical surgery in February 2002, Mrs Manning died on 13th May 2002.

Her husband, Gary Manning, who was himself diagnosed with malignant melanoma in April 2006 and sadly died on 18th January 2008, brought a claim on behalf of his wife’s estate, himself and their two young children. In July last year, Mr Justice Stadlen, found that Dr Harrison had wrongly concluded that biopsies taken in September 1995 and December 1996 contained no evidence of persisting malignancy. The Judge decided that if Dr Harrison had informed the surgeons that he could not exclude cancer, further investigations would have been carried out which would have led to salvage surgery in late 1996 or early 1997 and, on the balance of probabilities, Mrs Manning would have survived.

The Judge subsequently awarded substantial damages and ordered the Trust to pay costs.

Despite an extremely lengthy, thorough and detailed Judgment, Kings’ College Hospital NHS Trust and the National Health Service Litigation Authority launched an Appeal which was heard by the Court of Appeal in July 2009. Wide-ranging grounds of appeal were put forward including allegations that the Judge had asked the expert witnesses too many questions and that a delay of eight months between the conclusion of the Trial and the Judge finalising his Judgment made the verdict unsafe. The Defendants also alleged that findings as to Dr Harrison’s negligence were wrong, that the Judge should have preferred the evidence given by experts called on behalf of the Trust to the evidence of the experts called on behalf of the family and that there was insufficient evidence for the Judge to conclude that the tumour found in 2001 was a persistence of the original cancer.

Giving the Judgment of the Court, Lord Justice Waller said:

    “…it is absolutely clear that this was not a normal case…What the Judge was trying to do was to make sure he understood…extremely complex medical science. …He ultimately wrote an absolutely comprehensive Judgment dealing with each and every point in the most rigorous way.”

Lord Justice Waller went on to state that Counsel for the Trust :

    “…was quite unable to point to any aspect of the medical science which the Judge had got wrong…”

The assertions that the Judge should not have preferred the evidence given by the medical and surgical experts on behalf of Mr Manning were roundly rejected by the Court of Appeal, with the three Lords Justices of Appeal concluding that:

    “…in truth the Defendants are seeking…a total re-evaluation of the evidence…” but that the Appellants were unable to demonstrate a single instance where the Judge “…has gone plainly wrong or where he has misdirected himself.”

After receiving the Court of Appeal’s decision, the family’s solicitor, Mr Russell Levy of Leigh Day & Co said:

    “At last the Manning family can put this matter to rest. The case only had to go to Trial because the Trust and National Health Service Litigation Authority refused to negotiate on the basis that they believed they could not lose. That same wholly misguided attitude drove the Appeal forward after they had lost at Trial with the inevitable result that a huge amount of public money has been squandered on unnecessary legal costs. I hope the NHSLA will learn some lessons from this experience.”

Information was correct at time of publishing. See terms and conditions for further details.

Information was correct at time of publishing. See terms and conditions for further details.

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