As many people will know, the statistic is that one in two of us will get cancer in our lifetime. Many people will also have heard that the earlier that cancer is detected, then the better chance there is of a positive outcome. Claims regarding delays in cancer being diagnosed and/or in cancer treatment have, sadly, started to appear more frequently in my day-to-day practice. It is unclear if this is as a result of the Covid pandemic, pressures on the NHS or more remote assessments being carried out.
However, claims involving cancer diagnosis/treatment can often be very difficult cases to establish. To have a successful clinical negligence claim, you not only have to prove breach of duty i.e. that the care you received fell below the standard to be expected of a reasonable and responsible body of medical professionals, you also have to prove that your outcome would have been different had there not been a delay in diagnosis/treatment (i.e. causation). We have to prove causation on the balance of probabilities, i.e. it is more likely than not that you would have had a better outcome.
The difficulty with causation is that you always would have required some treatment for your cancer, through surgery, chemotherapy and/or radiotherapy, and once you have had cancer there can be chances of it recurring and of it affecting your life expectancy. Causation is therefore often the most complicated aspect of cancer claims.
We generally require input from independent medical experts to determine how your outcome would have differed, absent of any delays. The experts, in turn, usually have to rely on research studies, literature and their own clinical experience of how delays impact outcomes. Whilst there has been a lot of research done to date, there are still many aspects of cancer and cancer treatment that remain to be explored. This causes difficulties in establishing causation in cases involving less common types of cancers where there is a lack of data.
In relatively short delay in diagnosis/treatment claims, causation can be very difficult to prove as it is often hard to show that there has been any material difference in the size of the cancer and/or the treatment required and therefore the outcome. However, I understand that people will often feel that they have lost the chance for a potentially better outcome due to delays. Sadly, currently in English law, you cannot have a claim based on a loss of chance of a better outcome. This was decided a long time ago now in the case of Gregg v Scott [2005]. The claimant in this case had non-Hodgkin’s lymphoma and his ten year survival rate was reduced from 42% to 25% as a result of breaches of duty in his care. The claimant tried to recover compensation for the 17% reduction in his survival rate, but the court refused an award because, even if no breaches of duty had occurred, he would still have had a less than 50% chance of survival.
I have always found this quite harsh and some other jurisdictions (such as France and Spain) do award compensation in certain circumstances for ‘loss of chance’.
However, as discussed in Gregg v Scott, we are able to put forward claims on the basis that a delay in diagnosis/treatment has caused, on the balance of probabilities, a reduction in life expectancy for a specific period of time. For example, in JD v Mather (2012) the claimant succeeded where it was shown that (although their chances of ten year survival were always going to be less than 50%), on the balance of probabilities, the delay in diagnosis had caused the claimant’s life expectancy to be reduced by three years.
This is by no means a detailed account of all of the issues that can be faced in establishing a clinical negligence claim for a delay in diagnosis/treatment for cancer and every case will turn on it’s own facts, but hopefully it gives some insight into some of the difficulties that can be faced.
If you or a loved one has suffered an injury due to the negligence of a medical or health professional, including the delay in diagnosis of cancer, then we may be able to help you pursue a claim for compensation. Our leading team of experts are on hand to offer advice, so please get in touch with us on 0161 696 6165 or complete our online enquiry form and we will contact you directly.
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