The High Court has ruled that Charing Cross Hospital was negligent in failing to tell a 28-year-old man that doctors had removed a cancerous tumour from his stomach.
In a judgment issued today, His Honour Judge Peter Hughes QC – sitting as a High Court judge – found that Raul Guiu Gallardo had been “lost to the system” and that Charing Cross Hospital failed to discharge its duty to him in early 2001 by not informing him of the outcome of his treatment, of his prognosis, and of his continuing need for regular check-ups and CT scans.
Mr. Gallardo was not told of his diagnosis until December 2010, shortly before he underwent extensive surgery following the return of the malignant tumour, which left him in very poor health.
Had he been provided with appropriate follow up in 2001, it is likely the recurrence of the tumour would have been picked up a number of years earlier, and the treatment required would have been far less aggressive and detrimental to his health.
HHJ Hughes ruled: “There is no evidence at all that either he or his GP was appropriately advised of the need for future check-ups and CT scans. This information was vital both for the patient, for his GP, and for those caring for him in the future. The omission to set this out in writing is, in my judgment, a glaring failure in itself.”
In the seminal case of Montgomery v Lanarkshire Health Board , the Supreme Court in 2015 stated that a patient has the right to decide what, if any, treatment, to consent to. In the exercise of this right, the patient must be informed of the material risks inherent in the proposed treatment and what reasonable alternative treatment options are available, if any.
HHJ Hughes said: “By analogy, the same principle applies to the post-treatment discussion. It is the patient’s right to be informed of the outcome of the treatment, the prognosis, and what the follow-up care and treatment options are.”
Mr. Gallardo’s solicitor, Agata Usewicz, a medical negligence partner at London law firm Hodge Jones & Allen, said: “This case was defended on the basis that Mr. Gallardo had been told of his cancer diagnosis, but had simply forgotten, which is really quite preposterous. Once this defence had been dismissed, they then sought to avoid liability for the failure to communicate the diagnosis and provide follow up by virtue of the fact that he was transferred to a private ward towards the very end of his long in-patient stay. The hospital failed to discharge its duty to Mr. Gallardo and we are relieved that its attempt to absolve itself of responsibility failed. My client suffered for nearly a decade from a condition that he wasn’t aware that he had, and as such was denied the treatment which may have improved the quality of his life. We are very pleased that he has today finally received the answers he has been seeking.”
Mr. Gallardo commented: “I am happy that the Judge ruled in my favour. I feel vindicated but also very disappointed with the way the hospital dealt with everything. A significant amount of time and money has been spent fighting a case that they should have admitted from the beginning”.
Raul Gallardo, now 46 years old, was 28 at the time of being admitted to Charing Cross Hospital in January 2001, where he underwent emergency surgery for what he believed was the repair of a bleeding stomach ulcer. Surgeons had in fact removed an 8cm malignant gastrointestinal stromal tumour, or GIST
Mr. Gallardo has always asserted that he was never informed of this fact nor offered any follow-up or monitoring for the tumour. He suffered severe post-operative complications that led to further surgeries, including time in intensive care.
He was finally discharged from hospital in April 2001, and resumed his life without any knowledge that he had been diagnosed with cancer. He developed recurrent abdominal symptoms in 2009 for which he sought treatment. Absent the knowledge of his previous diagnosis of GIST, he and his treating doctors continued in ignorance of what might be causing his pain and discomfort. He underwent numerous investigations, and it was not until December 2010, when he contacted his surgeon at Charing Cross, that he was finally informed that a cancer diagnosis had been made in 2001.