Claims arising out of delay in diagnosing and treating cancer tend to be more common than those concerning the standard of care provided once a diagnosis has been made.
A cancer diagnosis can be delayed for a number of reasons including non-negligent ones. Biomedical difficulties in detecting the disease at an early stage can make late diagnosis inevitable. Patients may not initially appreciate the severity of their symptoms, attributing them to everyday causes rather than ill health.
However, delays sadly can also result from protracted referrals, incorrect or insufficient investigations, misreporting or failure to act upon test results and failure to monitor or follow up patients.
Cancer patients receive care from a specialised, multi-disciplinary team. Therefore, choosing the correct experts to report upon the care provided is not always straightforward. They may, for example, include physicians, surgeons, radiologists, specialist nurses, histopathologists and oncologists.
Causation often proves more difficult to establish than breach of duty. At the point in time when diagnosis should have been reached or treatment commenced, the nature, location, size and grade of the cancer need to be established. If, for example, biopsy slides are no longer available, this may be a matter of clinical judgment based upon accessibility of healthcare records, published research and what is known of the history of different cancers.
Cancers grow when mutated cells multiply and different cancers increase at different rates. A three to six month delay in diagnosing one cancer can have a devastating outcome, while a 12 month delay in another case may not materially affect the patient's prognosis. Consideration of treatment options at the date of the alleged breach is crucial. Generally speaking, early diagnosis and treatment give the greatest likelihood of a successful outcome. If the cancer remains localised, surgery can offer the best chance of a cure but may only be possible for early cases which are located in a suitable place.
If evidence demonstrates that the delay has not in fact worsened the patient's prognosis, it may still be possible to recover limited damages for pain, suffering and loss of amenity and for the distress caused by the manner in which the diagnosis came to light. Understandably in these situations, many claimants and their families struggle to appreciate why a claim cannot succeed in full, despite a clear finding of breach of duty. An admission and apology from the defendant can, however, go a long way towards helping them come to terms with what has happened.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
