Chronic Pain, vulnerable or inevitable? Bagaley v Chesterfield Hospitals

Factual background and the court’s judgement

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A claim was brought against the Defendant hospital after the Claimant, Ms Baggaley, was mistakenly led to believe that she might be suffering from cancer. The Claimant argued that this belief had caused her severe depression as well as Chronic Fatigue Syndrome (“CFS”).

The Claimant approached her GP after finding a lump on her neck. Laboratory tests were conducted. Following a negligent mix-up, the test results incorrectly showed the presence of ‘subtle abnormal cells’. One – unlikely – possibility was that the Claimant had cancer. Exchanges took place in October 2007 between the Claimant and her doctor following the tests. The Claimant alleged that these exchanges led her to believe that she had cancer, which then caused her mental illness. The tests were subsequently disproven and the doctor on several occasions explained to her that there had been a mix-up.

Whether the Claimant’s mistaken belief had caused her psychological problems and CFS was complicated by the Claimant’s predisposition to episodes of anxiety and depression. A large number of GP visits provided substantial evidence of pre-existing psychological issues connected to the stress caused by relationships, employment, pregnancy, health problems and a road traffic accident.

The expert evidence was polarised. On the one hand, the Defendant’s expert considered that the Claimant had long exhibited an endogenous proclivity to mental illness. On the other hand, the Claimant’s expert contended that the Claimant’s bouts of anxiety and depression merely reflected unusually challenging life events.

The judge held that the Claimant’s medical history showed a high degree of psychological vulnerability and that she had been subjected to periods of prolonged anxiety in the past and was susceptible to future such episodes. Nevertheless, the judge held the Claimant had not been suffering from any active psychological illness before the purported misdiagnosis.

It was held that the misdiagnosis had indeed caused the Claimant to develop psychological problems. However, her medical notes suggested that she subsequently made a prompt recovery. The future deterioration in her mental state took place much later and was as a result of new concerns in her life such as financial worries, weight-gain and relationship struggles. The only time the misdiagnosis caused her any further worry was when she once again found a lump on her neck. However, it was held that this would have caused anxiety notwithstanding the past misdiagnosis. It was significant to this conclusion that the judge did not view the Claimant as a particularly reliable witness. He preferred instead to rely on her medical notes. He rejected her assertions that she was constantly worried following the misdiagnosis and that this culminated in her mental illness.

The result was that no causal link was established between the misdiagnosis and the CFS. The latter materialised only after the Claimant recovered from a short period of depressive illness following the misdiagnosis. The judge awarded a modest sum reflecting the anxiety and distress following the misdiagnosis, totalling £6500. This was far short of the £144,360 that would have been awarded had causation been established.

Points of interest – a medical perspective

This is an interesting case in which the impact of a potential diagnosis of cancer is explored.  From the perspective of a Clinical Neuropsychologist it raises a number of interesting themes that can be summarised as follows:

[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1] When individuals are provided with the results of health-related investigations, and the news is not positive, it is very likely that their ability to process the information given will be hampered.  It is well established that in anxiety provoking situations the brain’s ability to encode information reliably is affected. Research would suggest that individual’s are very likely to focus on the negative rather than neutral or positive information.  It is therefore important for the clinician that friends or family accompany patients to consultations of this nature, as they can validate what was said in the consultation.

[2] To rely on an individual’s recall of their medical history without validation from the medical records is to be a hostage to fortune. Patients are not always good at detailing events from several years before.  Few people can recite an exact diary of events from memory.  This is particularly relevant in this case where the claimant had a significant number of consultations to recall. Therefore the importance of reviewing the medical records is essential in order to validate the patient’s timeline in respect of their medical history.

[3] In this case the Judge’s finding that the Claimant had a predisposition to psychological vulnerability is correct. One would expect, given the Claimant’s history, for her to have reacted badly and misinterpreted what she was being told at the various consultations.

[4] It is now standard clinical practice in the medical profession to identify whether the Claimant is a reliable witness.

[5] A clinical formulation of her psychological functioning would have identified that the Claimant reacts badly to stressful situations. Further, that her reactions are best explained by multiple factors, which may include [psychological and physical abuse from previous relationships, low self esteem and poor self-efficacy]. These symptoms would make an individual more vulnerable to developing psychosomatic symptoms.

[5] In this case it would have been best to support the evidence with a number of psychological measures specifically aimed at exploring personality and psychological functioning.

Gus A Baker

Emeritus Professor of Clinical Neuropsychology

Points of interest – a legal perspective 

In many ways, this claim is typical of what might be described as a difficult pain claim, where there is a vast difference between the Claimant’s valuation and the Defendant’s approach.

The Claimant denied any significant pre-morbid history, but analysis of her General Practitioner notes revealed a very different position.  Nonetheless, as Professor Gus Baker indicates, this history was arguably doubled-edged as it would indicate a very significant vulnerability to the relevant events.

Ultimately, the issue could be described as “where did the vulnerability end and where did inevitability begin?”  Or to put it another way, when did the Claimant’s post-misdiagnosis presentation merge back into her pre-misdiagnosis presentation?

This issue required painstaking analysis of the history, which at several junctures was not easy to assess.  Nonetheless, the Judge showed conspicuous care in his analysis of the history and evidence, concluding that by the time of the onset of the Chronic Fatigue Syndrome, the misdiagnosis was essentially a matter of history; see paragraphs 85 and 95.  The Chronic Pain Fatigue Syndrome was best explained by events contemporaneous with its onset.

Whilst it is tempting to look at a case like this in a broad way, the difficulty of unravelling a complex history means that ultimately the correct conclusion can only be reached both by experts and lawyers through a detailed examination of the relevant events.

Charles Feeny, Barrister at Complete Counsel

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Professor Gus Baker, Charles Feeny and other experts will be speaking at a seminar on Chronic Pain, Factitious Disorders and Malingering to be held on the afternoon of 3 November 2016 in Liverpool.  Further details will appear on the Complete Counsel and Pro-Vide Law website as soon as possible.