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Prisoner loses breast cancer negligence appeal

21 June 2010

Appeal judges have rejected a medical negligence claim by a prisoner who developed breast cancer in jail.

Cheryl Carter alleged that her prison doctor was negligent in failing to refer her to a breast clinic following her complaint of a lump in her right breast. Breast cancer was diagnosed after her release and she later had a mastectomy.

Giving judgment in Carter v Ministry of Justice [2010] EWCA Civ 694, Sir Scott Baker said the trial judge’s “natural sympathy” for Carter led him to a conclusion that was “unsustainable in law”.

He went on: “Here we are concerned with whether a general practitioner was negligent. In determining what should have been done by Dr Premaratne, the judge was not entitled to impose his own opinion regardless of the practice of the medical profession.”

Sir Scott Baker said the trial judge, Sir Christopher Holland, had not referred to the guidelines established by case law nor “to the fact that there was, apparently, a responsible body of medical opinion that would not have referred Ms Carter on the facts he found in this case.

“Sad though the outcome of this case is, I cannot find any breach of duty on the part of Dr Premaratne. In a case such as the present, where a general practitioner has found nothing potentially sinister, the law does not require routine referral for specialist investigation.”

Lord Justice Leveson, who delivered the leading judgment, said Carter frequently attended the healthcare department of Cookham Wood for what the trial judge described as “all manner of complaints”.

She complained of a lump in her breast on separate occasions to three prison doctors. Sir Christopher rejected the claims against the first two doctors and found that the third, Dr Premaratne, had not been negligent in her examination but in failing to make a referral.

However, Leveson LJ said he could see “no basis” for the argument that the doctor was in breach of her duty.

“On the contrary, in the light of the authorities governing allegations of clinical negligence, his decision that referral was not mandated is fatal to the claim.”

Lord Justice Leveson allowed the appeal by the Ministry of Justice. Sir Scott Baker and Lady Justice Smith agreed.

Categorised in:

Procedures Costs Clinical negligence Local government