According to cancer charity, Cancer Research, every two minutes someone in the UK is diagnosed with cancer. The NHS deals with over 350,000 new cases of cancer each year. Around a third of those are diagnosed via the ‘two-week-wait’ referral rule, a quarter following a routine or urgent GP referral, and a fifth are diagnosed (often at an advanced stage) after presenting as an emergency. Cancer survival has doubled in the UK over the last 40 years, with significant variation in survival between cancer types. 89% of cancer patients in England rate their care as very good or excellent. There are National Institute for Clinical Excellence (NICE) guidelines in place, designed to help doctors refer patients with suspected cancer earlier and more directly to the resources that can help them, with the aim of reducing delay between onset of symptoms, referral, diagnosis and treatment, but despite these measures, sadly, for a small minority of patients, unacceptable delays still occur with devastating consequences. What type of cancer delays lead to compensation claims? Some types of cancer (breast, cervical and bowel) are subject to national screening programmes which should identify abnormalities at an early stage. Women aged 25 to 64 are invited to undergo cervical screening every three years. This is extremely valuable as abnormal cells can be detected early and then monitored or treated before these become cancerous. Early detection of potential cancers through screening saves lives. Where claims occur in these circumstances, they tend to arise when smear tests are misreported as being normal when in fact there are abnormalities, or when patients who need follow up or treatment are not notified or recalled. All women aged 50 to 71 are also invited to undergo breast cancer screening every three years. If a woman has an increased risk of developing breast cancer, for example, due to her family history of the disease, she may be eligible for screening below the age of 50. Screening consists of an X-ray (mammogram). Mammograms can detect breast cancer early, possibly before there is a noticeable lump. Unfortunately, there have been instances of women not being invited to attend breast cancer screening, misreading of mammograms and failure to call patients who are identified as having abnormalities for treatment. If a person starts experiencing symptoms that could be suggestive of cancer it is important that their GP recognises their potential cancer symptoms and makes the appropriate referral for investigation or treatment. The National Institute for Clinical Excellence (NICE) has produced guidelines for GPs to follow that clarify when a person should be referred to a specialist for further investigations. These are very effective, but we continue to see clients who have attended their GP on a number of occasions, sometimes over a considerable period of time, complaining of potential cancer symptoms before their concerns are acknowledged and they are finally referred, leading to delayed diagnosis and treatment of their cancer. How is a claim arising from a delay in diagnosis and treatment of cancer valued? There is no set compensation award for a claim of this type, so each case is valued according to our client’s own circumstances. It is important to understand that any injury arising from the disease itself, which the patient would still have suffered even if she had been promptly diagnosed and properly treated, will not be compensated. A successful claim will provide compensation for the additional physical and often psychological injury and financial loss that the patient suffered as a result of the negligent delay in diagnosis, the failure to treat promptly or the pain and side effects of the more radical treatment that was only required owing to the progression of the disease during the negligent delay. How is pain and suffering compensated? The claim includes a payment for ‘general damages’ which reflects the pain, suffering and loss of amenity caused by the GP or hospital’s negligence. This aspect of the damages award generally follows guidelines which are based on what the court has previously ruled as an appropriate level of compensation for that type and severity of the injury. Are my financial losses also compensated? ‘Special damages’ is the name given to the aspect of the award which compensates for ‘out of pocket’ expenses that the patient has actually paid or financial losses that they have suffered as a result of the delay in diagnosis. What other types of injury or loss are commonly claimed in a delayed diagnosis or treatment of cancer case? Discussed below are some common losses arising from delays in the diagnosis or treatment of cancer. This is not an exhaustive list and depends on the individual client’s own experience, the nature and severity of their additional injury and their financial circumstances. We work with each client to understand how the negligent delay has affected them. We may also instruct experts to comment on specific items listed below, for example, which aids and equipment would be of benefit or which adaptations to property are required. Additional Treatment The pain, injury or disability caused by additional or more radical treatment and the costs associated with it are considered when assessing this aspect of the claim. If there is a delay in diagnosing cancer the affected person may have experienced treatment that would not have been required if the cancer had been picked up at an earlier stage. Delays in diagnosis of cancer can lead to more intrusive and significant surgical procedures than would have been the case had it been recognised earlier. Early treatment for cervical cancer may consist of a cone biopsy (where tissue is removed from the cervix) and/or trachelectomy (removal of the cervix) but progression of the disease during a delay in diagnosis might mean that the patient needs a radical hysterectomy, which would otherwise not have been necessary. Not only is this a more significant procedure with more risks of complications and longer recovery time, but it results in the woman becoming infertile. In these circumstances we would consider not only the impact of more intrusive surgery, but the emotional/psychological impact and costs arising from infertility. Delays in diagnosis of cervical cancer can lead to a woman undergoing chemoradiotherapy and brachytherapy which, again, could have been avoided if signs of the condition had been picked up at an earlier stage. If breast cancer is diagnosed at an early stage, treatment may consist of a lumpectomy, a breast-conserving surgical treatment in which the tumour (but not the breast) is removed. In more advanced stages, treatment may be mastectomy, which is removal of the whole breast as well as reconstruction. If delay in diagnosis has led to a mastectomy where, but for the negligence, a lumpectomy would have been offered, the impact of the more intrusive surgery will be reflected in the value of the claim. Delays in diagnosis of breast cancer can also lead to the woman requiring chemotherapy which would not have been required if the cancer had been identified at an earlier stage. Not only do these more intrusive treatments have a significant impact on the person at the time, but the long-term consequences can be devastating. The claim takes into account past, ongoing, and future costs and consequences arising from additional treatment. Loss of Earnings and Pension If a person has had to take time off unpaid, take a pay cut to change jobs, or cut down on hours as a result of treatment undergone as a result of the delay in diagnosis there will be a claim for net loss of earnings and pension. Care and Assistance A loved one may have had to take time off work to care for someone during and/or after treatment that could have been avoided if cancer had been identified sooner. In this case there will be a claim for their time. Professional carers may also need to be employed either in the short or longer term to assist a person with care needs arising from additional injury caused by their delayed cancer diagnosis. Medical Expenses These include the cost of prescriptions and also the cost of any therapies that may be of benefit, possibly including physiotherapy and/or occupational therapy. Travel Expenses The costs of travel to and from medical appointments which are required as a result of the delay in diagnosis, for example, can be claimed. Aids and Equipment An expert may be appointed to comment on any aids and equipment which might be of benefit. Adaptations to Property The consequences of delayed diagnosis and treatment of cancer can lead to long term disability. Where our experts believe that our client’s home needs adaptation to suit our client’s disability, (for example to provide a more accessible bathroom if bowel and/or bladder function are impaired) the reasonable costs of these adaptations can be claimed. Psychological counselling Severe, life-threatening injury, fear of recurrence of the cancer and the intensely personal nature of the disability caused by delayed cancer diagnosis and treatment can be very difficult to come to terms with. In these circumstances some people need psychological help to overcome anxiety or adjustment disorders, depression and PTSD. Where our experts believe that our client would benefit from counselling we are often able to recover the costs of such treatment as part of the claim. Loss of dependency and bereavement Where negligent delay has caused someone’s death, we can help the bereaved and dependent spouse and children obtain compensation for their loss of dependency and other claimable losses. If you have suffered severe injury or have been bereaved as a result of delays in cancer diagnosis or treatment and would like to find out more about making a claim, contact us by email at mednegclaims@boyesturner.com.
