Parents of baby who had eyes removed due to cancer fail in negligence claim against health board

A judge in the Court of Session dismissed the claim brought by Lynda Brabender, curator ad litem for the boy, in the action against Fife Health Board, after ruling that there was no evidence that the parents had told the health visitor that there was a white spot or squint in his eye.

Lady Stacey heard that the boy, “KW”, who was born on 1 March 2007, was the third of six children of LW and PW.

In April 2008 a health visitor employed by the defenders, Rachel George, noticed what she described as “a very obvious squint” in KW’s left eye.

He was referred to his GP who in turn referred him to hospital, following which he was diagnosed with a retinoblastoma – a cancer which grows behind the pupil – in both eyes.

The court was told that if the existence of the tumour is discovered at an early stage then it may be possible to remove one eye only, but in KW’s case the cancer was so advanced that it was necessary to remove both of his eyes, leaving him blind.

The judge noted that KW was a “much loved son” and the diagnosis and treatment which followed must have been a “devastating blow” for the whole family.

Lady Stacey said: “It is understandable that they have thought about all that happened before diagnosis, and it is correct that the pursuer acts in KW’s best interests in having this matter investigated and brought before the court.”

The parties agreed that had KW been referred and seen promptly in October 2007 with a white reflex in the left pupil, it was “highly likely” that the right eye tumours would have been in a less advanced stage, and it was more probable than not that the tumours in that eye would have been treated successfully, that the right eye would not have required to be removed, and that KW would have retained good quality vision in the right eye.

The pursuer argued that such earlier diagnosis should have been made in two sets of circumstances.

Firstly, it was Mr and Mrs W’s position that they saw something odd in KW’s eye and asked the health visitor, Christine Kidd, for advice, but she took no action except to fob them off by saying that it would be all right and they should not worry.

The pursuer’s main case was that KW’s blindness was caused or materially contributed to by “negligence” on the part of Ms Kidd.

They maintained she also said that she would arrange an appointment with the doctor but never did so, and they did not press to have an appointment because they accepted her assurance that it was nothing serious.

The pursuer claimed that KW’s parents told Ms Kidd that there was either or both a squint in KW’s left eye or a white spot in the pupil at the latest on 10 October 2007 and also on other occasions after that, but she did nothing about it.

The defence to that case was that Mr and Mrs W did not mention to Ms Kidd at any time that there was anything odd about KW’s eye, or ask for any advice about it.

The other case, referred to as the “systems case”, was that Ms Kidd was negligent in not seeing KW frequently enough for his circumstances, meaning she did not see signs of the condition and therefore did not refer KW for medical treatment.

The defence was that Ms Kidd did see KW as frequently as his circumstances indicated was appropriate and she did not see him at any time when any signs of his condition should have been observed by her.

The defenders maintained that no health visitor saw KW between August 2007 and April 2008 and that Mr and Mrs W did not at any time report any concerns about KW’s eye.

The judge dismissed both strands of the case and assoilzied the defenders.

In a written opinion, Lady Stacey said: “I find it is inherently unlikely that a health visitor who was given such information by a parent would do nothing. It is likely that she would tell the mother to make an appointment with the doctor.

“It is odd in this case that the parents say that when they told the health visitor about it ‘lots of times’, they did not press for advice. It seems to me to be unlikely that Mr and Mrs W would allow themselves to be fobbed off for so long if they had asked frequently, as they claimed.

“If Ms Kidd was told of KW’s symptoms, then she would know the situation could be serious. I see no reason why she would not tell Mr and Mrs W to make an appointment.”

The judge also rejected the submission by counsel for the pursuer that the Ms Kidd was an “unsatisfactory witness”.

Lady Stacy continued: “It would be a grave dereliction of duty for a health visitor to fob off a mother who was concerned about a squint or a white area in a baby’s eye. I heard nothing in Ms Kidd’s evidence to suggest that she would do such a thing due either to personal disapproval or any other reason.

“Nor did I find that she was a careless person who would fail to take note of such a complaint. There was nothing in either the oral evidence or the documents which led me to think that Ms Kidd was careless or that she did not attend faithfully to her duties.”

She added: “The evidence about Mr and Mrs W’s actions was contradictory, between themselves, and in comparison to the records. It is clear from the evidence of their family members that there had been some discussion within the family about KW’s eye before Mrs George saw it and made the referral.

“Thus Mr and Mrs W knew before that date that there could be something wrong, although they had no idea how serious it might be. It may be that they had thought about taking KW to the health visitor and asking for advice, but I find no acceptable evidence that they did so.”