EWJ 60 April 2025 web - Journal - Page 56
Fundamental Dishonesty:
Recent Lessons
by Elizabeth-Anne Gumbel KC
Ms Wilma Agnes Cullen – and – Dr Ruth Henniker-Major [2024] EWHC 2809 (KB)
This was a clinical negligence case arising out of a
negligently delayed diagnosis of laryngeal cancer, resulting in more extensive treatment for the cancer
than would otherwise have been required and, in particular, leading to total laryngectomy. The Claimant
now breathes through a stoma in her neck and speaks
via a valve located in the wall between her trachea and
oesophagus.
“Laryngectomy involves the surgical removal of the larynx
(voice box). The trachea (airway) and pharynx (food pipe) are
completely separated and the trachea is diverted through a
permanent opening in the neck, called the stoma. There is no
longer a route for air via the mouth or nose, and the person
becomes a neck breather.
Mrs Cullen requires daily care to her voice prosthesis and her
stoma in order to maintain her airway, minimise risk of infection or respiratory difficulties and maximise her ability to
communicate. This care is essential in order to maintain a safe
and healthy airway and will be required on an ongoing basis
for the remainder of Mrs Cullen’s life.
Liability was admitted and judgment entered for the
Claimant on the specific terms:
“That there was a failure by the Defendant to refer the
Claimant for investigation of her symptoms on an urgent basis
on 18 January 2016; that if the referral had been made, the
Claimant’s cancer would have been diagnosed at an earlier
stage; that the Claimant would have been treated with less radiotherapy and that no chemotherapy would have been required; that the total laryngectomy and bilateral neck
dissections and severe complications of the chemotherapy
would have been avoided.”
Due to difficulties with dexterity and vision, Mrs Cullen is
unable to selfcare and therefore needs assistance from a
trained care-giver on a daily basis.”
The description of the Claimant’s needs was endorsed
by the Claimant’s ENT expert Professor Homer.
In the course of the trial the Judge inspected the
Claimant’s stoma and he described this as: “a very
useful supplement to the witness evidence and the photographs
that accompany Professor Homer’s and Mrs Howison’s
reports.”
The trial before HH Judge Ambrose sitting as a Judge
of the High Court related to quantum only but the
Defendant made allegations of fundamental dishonesty in respect of the Claimant’s presentation of her
needs.
Basis of allegations of dishonesty:
It was alleged that the Claimant’s future care claim
was grossly inflated as it was said: “the Claimant has been
changing her voice valve herself since December 2022 and,
since the Claimant claims to be unable to manage the valve
herself, her failure to declare that she is able to do so is dishonest and has resulted in a grossly over-inflated claim for
future care.” By the end of the trial the allegation was modified so as to allege: “that the Claimant can perform some, but
not all, of the actions required for a valve change and alleging that she has failed to disclose this partial capacity and that
amounts to dishonesty.”
The Defendant relied on:
l cross-examination of the Claimant herself
l cross examination of other witnesses
l surveillance evidence
l social media evidence
Cross-examination of the Claimant herself
The Claimant was cross-examined by the Defendant
for 3 ½ days and the Judge concluded: “Over the course
of more than 3 ½ days of cross-examination, she impressed
me as an honest witness.” The Defendant relied on the
Claimant describing the use of forceps to remove secretions as undermining her case that she needed assistance but the Judge specifically found| of the
answers quoted by the Defendant: “It seems to me that
these quoted answers have been taken out of context in a way
that distorts their meaning”. Further in respect of quoted
answers in respect of stoma care that were relied on by
the Defendant the Judge found: The quoted exchange
has been taken from the transcript, yet it omits what went before and stops in the middle of a sequence of related questions
and answers, with the result that it does not properly reflect the
Claimant’s evidence.
In the event the hearing lasted 9 days spread between
March and July 2024 and Judgment was handed
down on 7 November 2024. The trial bundles were
contained in 25 lever arch files. The Defendant relied on surveillance evidence and the Claimant’s social media posts in an attempt to establish
fundamental dishonesty.
There was no dispute that the delayed cancer
treatment had resulted in the Claimant undergoing
a total laryngectomy, bilateral neck dissection, and
pectoralis major flap reconstruction in July 2017, following previous treatment with chemo/radiotherapy
for T3N0M0 SCC larynx. The treating clinician from
Royal London Hospital described how:
EXPERT WITNESS JOURNAL
54
APRIL 2025
