Failure to spot rare disease did not amount to a breach of the duty of care

Richard Meiklejohn v St George’s Healthcare NHS Trust (Queen’s Bench Division, 7 March 2013)

In March 2003, during the course of treatment received by the claimant Richard Meiklejohn, a sample of the claimant’s blood was sent to Professor Dokal for research purposes.  It was not until November 2005 that the sample was analysed and it was found that there was a gene mutation that led to a diagnosis of Dyskeratosis Congenita, a very rare genetic disorder.

In May 2003, the claimant had been diagnosed with acquired aplastic anaemia by Professor Marsh.  The standard treatment the claimant received carried a risk of the rare side effect of avascular necrosis, but the claimant was not informed of this and went on to develop AVN in both hips.

The claimant alleged Marsh carried out an inadequate clinical examination and there were sufficient clinical features to raise strong suspicion the claimant had constitutional DC.  It was also argued that: Marsh was wrong to diagnose acquired AA and start therapy before excluding the possibility of DC; she should have warned of the risks of side effects and offered alternative treatment; and she unlawfully took a sample of the claimant’s blood without consent and, having done, should have obtained the results earlier when the likelihood was that it would have been treated appropriately and so the claimant would not have developed AVN.

However, the judge found that the clinical examination and diagnosis was sufficient.  There was no duty to warn the claimant about a risk which had never previously been known in the defendant’s clinical experience or that of their expert.  The alternative treatment carried its own risks.  The defendant contended that even if she had returned earlier results to the blood sample, she would have still have recommended the same treatment.

Comment – This case concerned the law applying the standard of care.  It is an important case for Insurers, as the Court found that although the chosen expert was involved in the treatment, and therefore there was a possible conflict of interest, he was deemed to be independent and appropriate.  There was a very limited pool of experts with appropriate knowledge of the illness and the expert in this case was obliged to fulfil his overriding duty to the Court.