Law report: MoJ success over medical negligence of prisoner

rehabilitation doctor

This law report was contributed by national law firm Berrymans Lace Mawer.

Ministry of Justice v Cheryl Carter (Court of Appeal - 18 June 2010)

Cheryl Carter was serving a prison sentence. It was accepted by the judge in the first instance that she had complained of a breast lump at two previous GP consultations prior to 10 May 2004.

On 10 May 2004, Ms Carter consulted a GP — Dr Premaratne — employed by the Ministry of Justice with a lump in her breast. Breast pain for a few weeks was recorded but the pain had settled. On examination, nodularity of both breasts above the nipples was recorded.

On release from prison, Ms Carter experienced pain in her right breast and visited her GP, who recorded that she was experiencing pain in her breasts, tenderness in the right areola, a large axilla gland with cervical gland. A referral to a breast surgeon was made. On 21 November 2004, Ms Carter was seen by a consultant radiologist and oncologist who diagnosed a breast tumour of 10cm by 8cm. Ms Carter claimed in clinical negligence.

The first instance judge heard expert evidence from two GPs who could not agree whether Dr Premaratne should have made a referral to a specialist. The judge ruled that, as the experts could not agree, he would be 'steering a course between the two experts'.

Relying upon Morris v West Hartlepool Steam Navigation (1956), he found that although the clinical examination was reasonable with no finding of breast abnormality, the treatment provided by Dr Premaratne was negligent as the claimant had complained three times of breast problems and a referral for expert advice was relatively easy.

The Ministry of Justice successfully appealed the first instance judgment and submitted the first instance judge should have followed Bolam and Bolitho and considered whether the views of 'distinguished experts in the field' were 'capable of withstanding logical analysis'.

Unless the judge found that the generally held view of one of the expert GPs could not withstand logical analysis, the claimant could not succeed and the treatment of Dr Premaratne was not negligent.

Comment
The first instance judgment seemed to create an anomaly as against established case law. This anomaly has now been rectified and the established case law reaffirmed.
Chris Dexter, BLM Manchester

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