Causation difficulties in cancer cases
The High Court in Liverpool recently heard a case concerning delayed diagnosis and treatment of a malignant melanoma (cancerous skin growth).
The Claimant attended his GP, reporting symptoms of a growth in his groin which itched and bled on scratching and had increased in size. The GP mistakenly concluded that the growth was a benign wart and reassured the Claimant not to worry.
Seven months later, the Claimant returned to the surgery and saw a different GP who immediately suspected the growth was malignant (cancerous) and removed it. Tests revealed that the growth was indeed cancerous and sadly, by this time, it had spread to the Claimant’s lymph nodes and lungs (which made his prognosis very poor).
In cases concerning delayed diagnosis of cancer, it is necessary to prove two separate legal tests: breach of duty and causation. The first test requires a Claimant to prove that his treating doctor failed to do something which a responsible body of practitioners would do, or did something which no responsible body would have done in the circumstances. The second test requires a Claimant to show that, as a consequence of the failing in care, his condition and prognosis has been detrimentally affected. In the context of cancer, this usually means proving that the Claimant’s life expectancy has been reduced.
In the case of JD, the first GP accepted liability for failing to refer the Claimant to hospital when he first presented to the surgery. The Claimant’s case was that had the GP referred him, the cancer would have been removed within 2 weeks (pursuant to the Referral Guidelines for Suspected Cancer), and he would have achieved a cure and enjoyed a normal life-expectancy.
The Defendant’s experts in the case took a contrary view, presumably arguing that an earlier referral would have made no difference to the outcome, and it fell to the Court to determine causation in the case.
During the hearing, it was held that at the time of the GP’s admitted breach of duty, the cancer had most likely already spread to one lymph node. Consequently, the Claimant’s chances of surviving 10 years were already below 50%, irrespective of the GP’s failings in care. In other words, even if the GP had referred the Claimant promptly for treatment, this would have made no difference to his life-expectancy.
The Judge did, however, conclude that the GP failings had shortened the Claimant’s life-expectancy by three years. The Court now need to determine the level of damages to which the Claimant is entitled.
Delayed diagnosis of cancer cases are notoriously difficult to prove, due to the evidential difficulties on causation. It is not sufficient merely to show that a treating doctor failed to act promptly by referring a patient with a suspicious lump. Claimants must also prove (by reference to independent medical expert evidence) that earlier referral and treatment would have led to a better outcome. This could include having less-invasive treatment, or a prolongation of life.
We have particular expertise in investigating cases concerning delayed diagnosis of cancer. We ensure that the best medical experts are appointed and that cases are investigated as expeditiously as possible, as time is often of the essence in claims involving cancer patients.
If you would like further information regarding a potential medical negligence claim relating to cancer, please contact the clinical negligence team.