Unfortunately, failing to diagnose cancer happens all too often. Things can be missed, warning signs not picked up and by the time it is eventually identified survival rates have dropped, and treatment options are limited. This was recently brought into stark reality when at the start of May the government revealed that an IT error had caused 450,000 women to fail to receive vital letters inviting them to attend the NHS breast cancer screening programme. The health secretary estimated that a possible 270 deaths may have been caused by this. According to the national press there is some dispute around the accuracy of these figures and whether the numbers stack up; but, for many families they may now face the devastating possibility that a loved one could have diagnosed sooner and the outcome could have been different.

A clinical negligence claim in principle

To bring a successful clinical negligence claim, it is necessary to prove each of the following three elements:

Duty of care

First, it is necessary to establish that a duty of care existed between the proposed defendant and the claimant. In NHS cases, it is exceptionally unlikely that there are problems in relation to this as, as such a duty of care routinely arises when a patient consults with or is treated by a doctor, nurse or other health professional (whether this on the NHS or privately).

Breach of duty

Secondly, it is necessary to prove that the treatment the claimant received fell below the standard to be expected from a reasonably competent doctor, nurse or other health professional with appropriate specialist training and experience. The conduct in question is compared against what a body of responsible equivalent practitioners would have done in the same or similar circumstances (known as the “Bolam test”).

Causation

Once a claimant can establish that there was substandard care, it is necessary to prove that any such identified breach(es) of duty caused the claimant’s injuries. The test for “causation” is that the breach of duty either caused or materially contributed to (which means by more than a merely negligible amount) the claimant’s injuries.

The burden of proof of the case is always on the claimant and the standard of proof that the claimant has to achieve is on the “balance of probabilities” (i.e. more likely than not).

In delay in cancer diagnosis cases the key issues are usually in relation to causation i.e. would the identified breaches of duty have made a difference to the overall outcome. This typically involves an investigation into the hypothetical staging of the tumour at the earlier identified point of potential diagnosis, the likely treatment options at that stage and what impact earlier treatment would have on the patient’s chances of survival. These hypothetical questions are considered by an independent medical expert.

With respect to causation of death, in delay in diagnosis of cancer cases it is necessary for the claimant to show as a starting point that the survival rate absent the negligence was above 50% because, otherwise, the courts take the view that it is not possible to prove that the claimant would have survived on a balance of probabilities (this was following a case called Gregg v Scott) i.e. because on balance the claimant would not have survived even absent the negligence.

According to statistics publishes on the Cancer Research UK website survival rates for breast cancer are above 50% for all stages bar stage IV when it drops to 15%. Based on these statistics it may be possible for potential delay in breast cancer diagnosis Claimant to fulfil the Gregg v Scott criteria.

Why should I consider a claim?

For individuals who have become seriously ill with cancer compensation may greatly assist with their quality of life, or for those who have suffered a bereavement due to the delay in treatment, compensation may greatly assist the family who have been left behind.

If relevant, compensation can be claimed for losses and expenses incurred as consequence of the negligent treatment. Such examples include:

  1. Cost of private medical treatment. Private medical treatment often includes innovative treatments not available on the NHS due to cost constraints;
  2. Compensation for loss of earnings;
  3. Care and assistance; or
  4. Where claimants have children or other family members who were dependent on them (be that financially or for services such as gardening or child care) there may be a claim to help provide for them in the future if they die/have died.