Cancer Misdiagnosis Claims: The Complete Guide 2019

Cancer Misdiagnosis Claims: The Complete Guide 2019

Introduction

Unfortunately, cancer misdiagnosis claims are far too common. Cancer Research UK reported that there were 38% of preventable cases of cancer in the UK. Breast, prostate, lung and bowel cancers together accounted for over half of all new cancer cases in the UK in 2015 and there are around 164,000 cancer deaths in the UK every year i.e. about 450 per day. It is shocking to think that over £60,000 of those deaths were preventable deaths, whether because of cancer misdiagnosis, delayed or late diagnosis, or perhaps because the patient simply did not seek medical attention until it was too late.

We have often recovered misdiagnosis of cancer compensation for patients and also families after they have lost a relative to cancer. We represent the family, including the children, and grandchilderen of the family, in such circumstances. These claims are usually substantial where a parent has died, so their partner has lost their practical and financial contribution to family life and the children have lost their parent, and in some cases, ,grandchildren have lost care provided by their grandparent and so also have a claim.

Clearly, early diagnosis is essential to the chances of a cancer cure. Cancer misdiagnosis of the can lead to undertreatment of cancer or overtreatment of cancer. Early diagnosis can also lessen the financial impact of having to undergo treatment, by reducing recovery time. Delay can have devastating effects not just on the patient, but their loved ones, who may be reliant on them financially, as well as emotionally.

 

What is cancer misdiagnosis

There may claims for late diagnosis of cancer, as well as cancer misdiagnosis claims. These claims can arise in the following circumstances: –

  • a GP not taking symptoms seriously, or giving a wrong diagnosis altogether.
  • test results being misinterpreted or misreported, for example, a radiologist reporting that an x-ray is clear when in fact it should have been reported showing suspicious findings.
  • appointments for investigations being repeatedly cancelled or rearranged so there is late diagnosis leading to spread of cancer and possibly more aggressive treatment being required.
  • Delayed diagnosis or delayed treatment may deprive the patient of the chance of having their cancer killed.
  • You may feel that you have had the wrong treatment, or the treatment goes wrong
  • consent cases can be brought if a patient isn’t advised about the risks of a certain treatment and can show that had they been advised, they would have made a different decision. For example, radiotherapy to the brain can have life changing consequences for a patient, reducing their day-to-day abilities in some cases.

Making a cancer claim for cancer misdiagnosis

Before a full investigation is launched, in some cases it’s appropriate to help a patient to go through a written complaints procedure with the healthcare provider concerned. This can be a very helpful early opportunity to see what the healthcare provider has to say for themselves about the errors in care that are alleged. Often clients don’t feel up to writing a complaint letter and we happily step in and draft complaints for a client in those circumstances. It’s important the right questions are asked when going through the complaints procedure so it’s worthwhile consulting a specialist solicitor before a letter you have drafted yourself goes off. There may be appropriate Guidelines/Protocols that could be requested with the complaint letter. These days, the care provider is not entitled to raise a charge for supplying copies of records and the records can also be requested at the same time as making the complaint.

When making a complaint it is important not to refer to claiming compensation, otherwise the healthcare provider can choose to refuse to engage in the complaints process.

You will certainly need a specialist firm of solicitors to help you bring a cancer compensation claim. There are usually complicated issues to be looked at medically, as follows:

  • for example, if a GP has misdiagnosed cancer, or failed to refer until late for investigation, then an independent GP will be needed, to give an opinion on whether the standard of care provided fell below a reasonable standard. Clients are often surprised to know that doctors in the UK are only required to provide a reasonable standard of care, that is in accordance with a responsible body of petitioners in the speciality, not excellent standards of care!
  • If substandard care (also referred to as negligence) can be shown, then it is also necessary to show that with reasonable care, patients condition and future prognosis would have been improved. Often various medical specialities need to assist with this issue which is referred to as “causation of injury”. These medical specialities can be in the fields of oncology, histopathology, radiology, neuroradiology and other.

Medical Solicitors have an extensive register of medicolegal experts upon whom we can rely. It is essential to have the right expert on board. The wrong expert can result in a claim failing.

Making a misdiagnosis claim late

There is a three-year period in which to issue court proceedings from the date that a patient is aware that they have suffered a diagnosis of cancer. The three-year period may run from a later date if it can be proven that the patient could not have been expected to have appreciated that any misdiagnosis had occurred until later on. This is subject to the test of reasonableness. The court won’t necessarily accept what a patient says about this, but rather will consider what they think are the conclusions and suspicions that a reasonable patient should have had and by when.

If you think you have gone past the three-year limitation period, you should not let this put you off approaching a specialist clinical negligence firms for advice. A lot of firms have a strict policy that they will not touch cases that fall outside of the three-year limitation period but our firm does consider such cases. We have succeeded in many cases that fall outside of the three-year limitation period, strictly speaking. The court can be asked to allow claims to proceed, despite being primarily out of time, where there are reasonable grounds to allow this and the Claimant can show that there is a serious claim to be made.

The three-year limitation period does not apply to children until their 18 when it starts to run. It also it does not apply to patients within the meaning of the mental health act (generally speaking, those with a mental disability, or physical handicap, that prevents them from providing instructions to a lawyer).

Cancer misdiagnosis compensation amounts

  • ‘General damages’ for pain, injury and suffering. The Judicial College Guidelines in the UK sets out a tariff for damages awards, with brackets to be applied to different types of injuries. If a cancer patient dies after a prolonged period of pain and suffering this can attract high awards of compensation (of at least £40-50,000 or more)
  • ‘Special damages’ for financial losses, such as financial or practical dependency on a deceased patient, or loss of earnings for a living patient (or their family member if losing pay while having to care for them), the value of care provided by the family, or private care paid for and any financial loss that an be shown to have been caused directly by the negligent care.
  • A bereavement award if a partner or child has died. This is set by statute and is currently £12,980.

Different types of claims

Many cancers respond well to early treatment such as cancer of the colon, breast, lung, prostate, cervical, vulval, testicle, kidney and non-small cell cancers.  Unfortunately, other cancers have a poor chance of recovery regardless of when the cancer is detected.  These types of cancers include small cell lung cancer, pancreatic cancer, and ovarian cancer (unless there is early detection before the ovarian cancer has spread elsewhere).

  • Bowel cancer compensation claims

Although more common in older patients, bowel cancer can affect anyone at any age. Late diagnosis can mean the opportunity to have keyhole surgery (laparoscopic), with less scarring and a quicker recovery time is lost. It may mean more aggressive surgery is required, with an extensive cut to the abdomen and other treatments may also be required such as chemotherapy, or radiotherapy.

  • Breast cancer compensation claims

These can arise because of a failure to treat a breast lump, or other symptoms, as suspicious and therefore a failure to refer for further investigation, failures to call patients for breast screening, giving the wrong treatment for breast cancer. There have also been cases of patients undergoing removal of breast tissue, having been advised they are suffering from cancer, when it later emerges that their diagnosis was incorrect. In addition, errors can happen in the laboratory, once breast tissue samples are examined, if all relevant tests are not undertaken, meaning that a patient is deprived of advice about all possible treatment options. We are acting in such a case presently where a patient died after having been told that she was suffering from sarcoma rather than breast cancer and substandard standards of pathology reporting are relevant in this case, as well as substandard decision-making on the part of a breast surgeon.

  • Cancer of the ovaries

We recovered £1.5M in compensation for a professional lady who was diagnosed with slow-growing cancer of her ovaries, but six months later was diagnosed with lung cancer. She was told that the lung cancer was not related to the ovarian cancer. She was told that she had aggressive lung cancer and so she was given highly aggressive treatment, including radiotherapy to her brain, that left her unable to work for the rest of her life. Our investigation showed that the lung cancer was spread from the ovaries and our client should never have had the highly aggressive treatment.

  • Cancer of the cervix and cancer of the womb

With the UK wide introduction of cervical screening, deaths from cervical cancer should be reducing but claims still arise because sometimes test results are reported as clear when in fact such results should have been noted as suspicious and led to further investigation.

  • Prostate cancer.
  • Liver and other cancers

We mention the most prevalent cancers above, but cancer can strike anywhere in the body and any late diagnosis, or misdiagnosis, can lead to a cancer misdiagnosis compensation claim.

What should you do now if you believe you have a claim?

Don’t delay! Sometimes clients put off contacting a solicitor because they feel they have enough on their plate dealing with the diagnosis and undergoing brutal treatment. However, recollection of important details in relation to consultations with doctors can fade over time but a specialist solicitor can make a record for you at an early stage of your evidence, so the finer detail is not lost. Finer detail, particularly where doctors are being accused of failing to take symptoms seriously, can be terribly important to the success of the claim.

In addition, many specialist practices will not act in cases where the three-year limitation period has gone by, although Medical Solicitors will if we think there is a strong enough case to get discretion from the court to go ahead despite the time issue, also a strong enough case generally and the claim has sufficient value.

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