Contributory negligence in clinical negligence – A recent case

I have previously written about the case of Shaheen v Dr Daish [2025] EWHC3056.  In my previous article I wrote about the Trial on the limited issues of determining the facts of a GP consultation in February 2019 and the steps that would have followed depending on the Court’s findings of the facts.

In that case, the Defendant also raised an argument of Contributory Negligence in relation to the deceased’s failure to attend follow up appointments with his GP.

Briefly, the case related to allegations of a delay in diagnosis of a lung tumour arising from the failure to carry out a chest x-ray.  Whilst the parties agreed that had an x-ray been done it would have revealed an abnormality that would have led to a CT scan being recommended, it remained in dispute as to whether subsequent treatment would have altered the outcome.

The process for requesting a chest x-ray was that:

• The doctor had to request it on the system.
• The patient had to be informed of the request and be advised to attend a walk-in radiology centre for the x-ray.
• Unless the patient attended, nothing else would happen, as happened in this case.

It was therefore essential that a patient be informed of the request and the process.  This arrangement was not dissimilar to the process for undergoing other investigations that the deceased had had in the past, for example, blood tests.

The allegations focussed on the GP’s alleged failure to inform the deceased of the need for the chest x-ray.  As a result, the deceased did not attend for the chest x-ray.

In this case, the GP had advised a follow-up appointment 2 weeks later as well as a further follow up appointment later that year.

The deceased had failed to attend either of those follow up appointments.

There defendant GP made an allegation of Contributory Negligence, alleging that the deceased’s failure to attend follow-up appointments in the months following the February 2019 consultation was itself causative of injury in that had he attended, a chest x-ray could have been requested.

The defendant’s case was not limited simply to defending the GP’s conduct, but it also sought to allege that the patient was, to a degree, the architect of his own misfortune and thus that the deceased himself should bear some responsibility for his poor outcome.

This is an approach that I am seeing more and more.

Often, with cases arising from a delay in diagnosis, the patient may have subsequently made decisions, often in reliance on false reassurance from a clinician that, in retrospect, may be seen to be unwise.  Those decisions often involve some form of failure to follow medical advice or seek assistance when a condition deteriorates.

I myself have acted for claimants recently where similar allegations have been made often where a course of treatment or advice for an assessment has been turned down because the patient had been negligently reassured by a clinician.

The Defendant in those cases is essentially seeking to argue that it should not be responsible for the whole of the patient’s injuries, because those injuries would not have been as severe had the Claimant followed later medical advice.  But in most of those cases, the reason for the Claimant’s later decisions is the very fact that the Defendant had previously negligently advised the patient that their condition is not serious and that it would probably resolve in time.

These are somewhat distasteful arguments.

There are relatively few authorities on these allegations in the case law, but this case provided an opportunity for the judge to review those cases.  The two key cases that the judge referred to were Dalton v Southend University Hospital NHS Foundation Trust [2019] EWHC832 and Pidgeon v Doncaster Royal Infirmary.  In both of these cases, claimants had failed to follow medical advice, but in circumstances where it became clear that explicit warnings had been given to those claimants on several occasions as to the potential serious consequences of a failure to follow that advice.  In those cases, the claimants had been held partly liable for their poor outcomes.

In this case, the judge considered that it was likely that the inhaler that had been prescribed by the GP brought about an improvement in the deceased’s symptoms and because he had probably not been warned about a potential serous underlying cause for his symptoms, the deceased felt reassured and understandably did not go back to the GP.

In contrast to the cases above, there was no such warning and the judge considered that the deceased’s failure to attend the follow-up appointments could not be considered to be unreasonable.

The Contributory Negligence allegation failed.

This provides some helpful guidance when considering these allegations in the setting where a patient has been negligently reassured and is then subject to criticism for making decisions based on that negligent reassurance.