The Supreme Court has increased damages for David Philp from €45,000 to €100,000 after finding that he lost the opportunity to receive timely advice and consider treatment following a negligent prostate cancer misdiagnosis. It also included aggravated damages for the defendants’ conduct during the case.
The judgment, delivered by Fennelly J on 17 December 2004, concerned an appeal by Peter Ryan, Bon Secours Hospital and Bon Secours Health System. The defendants challenged the amount awarded by the High Court. Philp’s cross-appeal argued that he should also receive damages for possible loss of life expectancy and aggravated damages.
Philp was admitted to Bon Secours Hospital in Cork on 26 June 2001 after being unable to pass urine and experiencing abdominal pain. His urine tests showed no bacterial growth and his PSA level was 168. Ryan diagnosed acute prostatitis. The High Court found that diagnosing prostatitis while excluding other possibilities was negligent, and that Philp was not told he had cancer until March 2002, about eight months later.
By then, the cancer was advanced. The judgment records that the medical evidence did not establish that earlier treatment would probably have prolonged Philp’s life. Experts disagreed about whether hormone treatment should begin immediately or be deferred. The High Court had awarded €45,000 for Philp’s anguish and distress, including his reasonable fear that the delay had shortened his life, but made no separate award for the lost chance to consider treatment.
The Supreme Court held that compensation could be awarded for losing a substantial opportunity to receive appropriate advice and treatment, even where the chance of benefit was uncertain. It concluded that the lost opportunity should be compensated in this case and dismissed the defendants’ appeal as without merit.
Fennelly J also agreed with McCracken J that aggravated damages were warranted. The judgment said the defendants’ solicitors had failed to disclose that a clinical note relied on in pre-trial proceedings had been falsified, and described the conduct as calculated to mislead Philp, his advisers and the court.
The court allowed Philp’s cross-appeal and substituted €100,000 for the High Court award. The increased sum covered the lost opportunity and aggravated damage. The judgment does not say that earlier treatment would have cured Philp or establish that it would probably have extended his life.