The headline news in The Sun recently claimed that the NHS “paid £40.3 million compensation last year” to patients whose cancers had not been diagnosed or incorrectly diagnosed.
The article stated that “The health service was sued by 314 people who won (my emphasis) an average of £130,000 each where the NHS admitted negligence in their diagnoses”. The article goes on to say, “Cancer can be difficult to diagnose as symptoms are often vague such as stomach aches or tiredness”.
The tone of the article is interesting as it quotes the cost to the NHS of all claims since the Covid crisis at £135 million and goes onto remind us that “Hospitals are bursting at the seams with waiting lists at record highs.”
The Sun quotes Guy Forster from the Association of Personal Injury Lawyers (APIL) redressing the balance by saying “Some patients will have required more extensive treatment than would have been necessary, while others face a much worse prognosis. The reality is that these failures in care are avoidable and the growing numbers of cases suggest that lessons are not being learned. When negligence has been proven, it is right that patients are compensated.”
It is important to remember both the legal and the human aspect of these claims.
Turning first to the legal issues which must be proven. Many enquiries that we receive are not taken any further as, whilst the care received by the patient may not be good, its not so bad as to breach the threshold needed to prove negligence. The fall out of possible claims at this stage is between 90-95%. Of those we take forward as possible claims, a huge amount of work is undertaken investigating the matter, reviewing medical records, researching the particular cancer, assessing the treatment that has been received and the outcome of it, and obtaining expert evidence. It is only after all of this has been completed, that the formal claims process can start, by sending a letter to the NHS. Many cases fall at each step of the process and so it is only those cases which have a solid legal foundation in negligence that get to this first step of notifying the NHS. Those patients who are finally awarded compensation are those who deserve it. The idea that ‘vague symptoms’ might attract a multi thousand-pound award is fanciful and, in my view, dangerous.
The second aspect is the human toll this takes on those involved. Being given a diagnosis of cancer is devastating, life changing and bewildering. To then find out that the diagnosis is wrong or it could have been given sooner, such that it would have changed the course of your treatment and possibly saved your life, is catastrophic. Many of my clients are angry, tearful, depressed, severely stressed and anxious. To then embark on a legal claim takes enormous strength and courage, often whilst still undergoing treatment for their cancer. It is a long arduous process and not to be undertaken lightly.
If at the end of this, there is an award compensation, this is definitely not seen as a ‘win’ by my client. The compensation is exactly that – compensation for the pain and suffering they have endured, the fact that they have undergone extensive operations, painful and exhausting chemotherapy and radiotherapy and have lost years of their lives. They may be awarded compensation: for loss of wages if they have been unable to work; for care which they now need; for adaptations to their home so they can be as independent as possible. Added to this is the profound impact on my clients’ mental health. They don’t ever see themselves as ‘winners’.
As Guy Forster says, what is needed is for lessons to be learned. In my view, the NHS must be funded fully so it can be the health care provider it was always intended to be. But while ever this isn’t the case, those who claim compensation do so, not to ‘win’ money, but because they need it, should not be scapegoated.
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