Medical negligence claims for cancer misdiagnosis

Cancer Research UK states that four in ten cancers can be prevented by taking a number of common sense steps such as not smoking, eating healthily, taking more exercise and limiting exposure to the sun. Medical consensus, while remaining in favour of screening where available, agrees that greater awareness, self-examination, lifestyle changes and improvements in treatment methods remain critical to decreasing mortality rates. 

In this guide, we cover the most common forms of cancer, what signs to look out for, medical diagnosis, and the range of treatments available. We also explain what happens if you believe that the treatment you received has fallen short of what you expect, including how to raise concerns and the process of making a medical negligence claim.

The guidelines include a table linking a range of symptoms to 37 different cancers, pooling all the key information in one place to help GPs to speed up the decision whether or not to refer. The guidelines are intended to help not only GPs decide whether or not to refer patients for diagnostic testing but also to help patients recognise symptoms that might need further investigation. The guidelines also recommend which tests to perform and what type of referral to specialist services should be made. 

As a referral does not automatically mean ‘cancer’, NICE recommends that doctors explain to their patients why they are being referred and if they want to be involved in any decision making. This can be a difficult, sensitive subject to tackle even for doctors, so it advisable that patients with suspected cancer symptoms, go to their appointments armed with a list of questions to help them gather as much information about their condition as possible. There are many websites supporting people with cancer and most have helpfully included a checklist of questions that patients can ask.

They may carry out a physical examination, the manner of which will depend on the type of suspected cancer (most specialist cancer websites outline what to expect) and may take a blood test.

Depending on the GP’s initial assessment, they may refer you to hospital to see a specialist as either an urgent or a non-urgent referral. Neither type of referral means you have cancer – in most cases, such referrals are precautionary. If the GP does not refer you for tests, it is important that you ask them to explain why they do not think it necessary (although they are likely to ask you to monitor your symptoms carefully and return to the surgery if they have not improved).

If you are diagnosed with cancer, surgery, chemotherapy and radiotherapy continue to be the principal forms of treatment but there is a range of procedures that have been developed to target specific cancers including hormone therapy and drugs. Your course of treatment will depend on the type of cancer and how advanced it has become so it is important that you ask your cancer specialist to explain all the options available and why they are prescribing one form of treatment in preference to another.

The main symptoms are:

• A lasting change in bowel habit such defecating more frequently or stools being looser than usual;
• Blood in stools (although it is important to discount piles first) or unusual bleeding;
• Abdominal pain and / or bloating following eating;
• Unusual weight loss and fatigue.

Diagnosis and treatment: If you are worried, you should see your GP first. They will ask a series of questions about your symptoms and may carry out a rectal examination. Depending on their initial assessment, they may refer to you to hospital to see a colorectal specialist.

There are a number of exploratory tests you may undergo at hospital including an endoscopy, a colonoscopy, or a flexible sigmoidoscopy. If the tests are clear, you will be referred back to your GP. If the tests reveal that you have cancer, the consultant and specialist nurse will talk through next steps which may include surgery, radiotherapy, chemotherapy or a combination.

Nonetheless, if you have any concerns it is always better to seek reassurance from your GP:

• A lump, either visible or by touch, in the breast or armpit
• Change in size, shape or feel
• Puckered, or dimpled skin on the breast
• Unusual swelling, irritation, redness or warmth
• Changes in the nipple, including inverted nipple or a discharge.

Diagnosis and treatment: All women between the ages of 50 and 70 are offered breast cancer screening every three years. Mammograms can help to detect early signs of cancer (Cancer Research UK notes that screening detects 9/10 cancers). If the x-ray shows anything abnormal you will be referred to a specialist unit for more tests which might include a biopsy. If you are between screenings and spot something that isn’t quite right, do not wait for your next mammogram but go and see your GP.  Your GP will ask questions about your symptoms and may examine you. You may be referred a hospital specialist for diagnostic tests including ultrasound, fine needle aspiration, a biopsy or an MRI scan. If the tests are positive, your specialist will discuss the range of options and their recommendations based on the type and stage of the cancer. These can include: surgery, chemotherapy, radiotherapy, hormonal therapy as well as specific drugs.

• Pain during sex
• Pain in the lower back and / or stomach

Diagnosis and treatment: All women between the ages of 25 and 64 are invited for cervical screening (every three years for women aged 49 and younger and every five years for women aged 50+).  The screening is designed to detect any abnormal cervical cells that might develop into cancer. Anyone experiencing symptoms of cervical cancer in between screenings is encouraged to see their GP.  Your GP will ask about your symptoms such as when the bleeding started, and the frequency and intensity. You will be asked about your family history, general health and any recent changes, such as a change of contraceptive method. The GP may carry out a physical examination, including taking a cervical swab and conducting pelvic examination. Depending on the outcome of the examination, the GP may refer you to hospital for a colonoscopy, a LLETZ (large loop excision of the transformation zone) or a cone biopsy to examine the cervix in more detail. If hospital tests confirm that you have cervical cancer, the treatment that will be offered will depend on how advanced the cancer has become and may include surgery, chemotherapy and radiotherapy (or chemoradiotherapy) or a combination thereof.

• Feeling sick
• Swollen and or painful abdomen
• Loss of appetite

Diagnosis and treatment: Keep a note of your symptoms and how long you have been suffering with them to discuss with your GP. Your GP will ask a number of questions and may give you a general examination. If your GP refers you to hospital the tests that will normally be carried out include blood tests, ultrasound, CT or MRI scan, a biopsy or a laparoscopy. If the tests indicate that you do have liver cancer, the treatment could involve surgery, chemoembolisation, heat treatment (thermal ablation), and radiotherapy.

Diagnosis and treatment: Your GP will ask questions about the frequency and severity of your symptoms, and how long you have had them. They will also question you on your general health as well as general lifestyle questions such as whether you smoke, or are regularly exposed to airborne pollutants that might affect your respiratory system. After examining you, they may refer you for hospital tests which may include a chest x-ray, ultrasound, CT or MRI scan, different types of biopsy, or bronchoscopy. Depending on the type (and stage) of lung cancer diagnosed (the two main types are small cell lung cancer and the more common non small cell lung cancer), treatment may include surgery, chemotherapy, radiotherapy (or a combination: chemoradiotherapy), immunotherapy, and other specialist treatments involving heat and light.

As it can strike at any age, it is wise to be aware of the four main symptoms although, more often than not, those symptoms will be indicative of another non-cancer related issue:

• Persistent bloating
• Feeling full / difficulty eating
• Needing to urinate more frequently
• Pain in the abdomen and lower back

Diagnosis and treatment: As with all the other cancers described in this guide, your GP will ask about symptoms, family history, recent life changes and lifestyle. They may examine you, including a vaginal examination. If you are referred to hospital with suspected ovarian cancer, you should have a CA125 blood test to establish if you have higher levels than normal of the CA125 blood protein which may indicate ovarian cancer. If so, you will be referred for an ultrasound scan to identify anything unusual. This may be followed by a biopsy carried out via a laparoscopy (key hole surgery) or a laparotomy (open surgery). If the tests are positive, you are likely to be offered further surgery followed by chemotherapy and / or radiotherapy.

Diagnosis and treatment: because the symptoms often take time to develop, it is important to see a GP as soon as you are aware that something is not right. The GP may take a blood test and may request a urine sample as well as physically examining you. If you are referred to hospital for additional tests, these may include further blood tests, scans (including CT, PET-CT, MRI and ultrasound), biopsy, ultrasound endoscopy and laparoscopy. If the tests are positive, surgery followed by chemotherapy and / or radiotherapy are the most common forms of treatment.

However, as the cancer advances, the prostate starts to press on the urethra and the following symptoms may indicate cancer (although they can also be indicative of an enlarged prostate):

• Problems with urinating or emptying the bladder
• Needing to urinate more often, especially at night
• Blood in urine or semen

Diagnosis and treatment: Your GP may carry out a rectal examination to check your prostate gland and they are also likely to order a PSA blood test. This may indicate the presence of cancer but is generally not sufficiently reliable to be used without further exploration.  If your GP refers you to a specialist, further tests may include scans (MRI, CT, PET-CT and ultrasound) and a biopsy. If the tests show that you have prostate cancer, treatment may involve surgery, hormone therapy, chemotherapy and / or radiotherapy.

The most obvious sign is a lump or swelling in one testicle and this can be accompanied by:

• Pain or discomfort in the testicle or scrotum
• An enlarged testicle (but note that testicles are rarely the same size)
• The scrotum feeling heavier or firmer than normal

Diagnosis and treatment: Your GP may examine your testicles to check for swelling or other abnormality. If you are referred for further tests these may involve blood tests, ultrasound, MRI scan, or an orchidectomy (the removal of a testicle) for an accurate diagnosis of the type and severity of the cancer. Surgery is the main treatment for testicular cancer. Depending on the stage the cancer has reached, you may also be offered chemotherapy and / or radiotherapy.  However, it is worth noting that Cancer Research UK reports that nearly all men make a full recovery from testicular cancer.

This is why it is essential that individuals become familiar with their own bodies so that they can spot any unusual changes.

When such changes become apparent, it is crucial that you maintain a diary of symptoms so that the GP can exercise their judgment more accurately. Most GPs will err on the side of caution and refer you for more exploratory tests; however, you may be advised to monitor the symptoms carefully at home for a couple of weeks to see if they get worse or better.

Although the NICE guidelines exist to help doctors recognise potential cases of cancer, human error may lead to a misdiagnosis (either no cancer or the wrong cancer) and the wrong treatment given.  It is an established fact that the earlier cancer is detected, the greater the chances of recovery – on the assumption that the right diagnosis is made in the first place and the correct treatment prescribed. If you are concerned about any aspects of your treatment, it is important that you raise the issue as soon as possible as the earlier you complain, the sooner the problem can be addressed – and it is worth emphasising that raising concerns is not the same as a legal claim.

Making a complaint

Every GP practice and hospital has a complaints procedure (which all NHS organisations are required to have under the NHS constitution). The starting point is an informal process which encourages you to raise any concerns verbally with the person in charge of your care. This is often the quickest way to resolve the problem as your concern may be something that can be easily fixed or explained.

If you feel unable to speak to someone directly, you can also feedback your concerns via a feedback form which you can access either via the hospital or GP practice website or by asking a member of staff (often reception) for a copy.

Making a formal complaint

If you feel the informal process is not working, you can trigger a more formal procedure providing you do so within 12 months of the problem occurring or 12 months from when you first became aware of the problem. This timing can be adjusted if there is a good reason. If you are directing your complaint to the hospital, details of the person to whom you need to address your written complaint will be listed in the hospital’s complaints procedure which the hospital is required to produce on request. For a GP practice, you would normally write to the Practice Manager. There are several bodies who can help you with managing a complaint including the Patient Advice and Liaison Service in hospitals and the NHS Complaints Independent Advocacy Service, available via your local authority. 

Making a medical negligence claim

If you feel that your concerns have not been adequately addressed, you may have the basis for a cancer negligence claim but it is worth noting that the evidence bar required for a successful claim is very high.

Time limits:  Under normal circumstances, a legal claim must be brought within three years of the date of the injury (or death) or from the point at which it became clear that medical error was responsible for the injury/death. Please note the different time scale for making a complaint, as explained above.

Establishing your claim: the chances of establishing a successful claim will depend on the breach of duty and the harm caused – and this is the basis on which we can advise you whether or not your claim is sufficiently strong to proceed. We will assess your claim using three criteria:

1. The healthcare provider must be guilty of a ‘breach of duty’. This means that the care you received fell short of what is deemed acceptable (which broadly means that a reasonable body of medical opinion agrees that the action taken was not of the standard expected);
2. You were injured or received a worse than expected outcome; and
3. The injury you received was as a result of a ‘breach of duty’.

Making your claim: Given the high standard of proof required to determine medical negligence, many claims do not succeed. However, of those that do succeed, the majority settle before reaching court. However, there is a legal process to be followed which may, or may not, end in court:  

1. Pre-action protocol: A Letter of Claim sent to the Defendant (the person or organisation against whom the claim is being made) sets out the allegations. The Defendant must reply (a Letter of Response) within four months. This reply will decide whether or not to instigate court proceedings.
2. Court proceedings: A claim is issued (legal documentation setting out your case is placed with the Court) in either the High Court or County Court. The procedure follows a path laid down by the Court rules and requires exchange of your evidence which will include a statement from you and expert medical evidence.
3. Trial: once the evidence has been assessed and the parties have negotiated on the issues involved, the claim can go to trial which should take place within 12 to 18 months of the claim being first issued. The judge will decide at this stage if your claim will succeed or not.
4. Personal representative / Litigation Friend: you can bring a claim on behalf of a family member if they are a minor, unable to represent themselves or deceased.

Valuing your claim: The value of your claim will depend on a number of issues including pain, suffering, loss of earnings and likely future losses (such as care requirements). Your compensation will be made up of ‘general’ damages relating to pain, suffering and loss of enjoyment of life and ‘special’ damages relating to past and future financial loss, such as loss of wages and the cost of care. We can advise you on how your compensation is likely to be assessed..

Next steps: It is crucial to record as many details about the medical treatment you received and that you can remember and the effect your injuries have had on your everyday life. In addition:

1. Keep all relevant documents
2. Record all related expenses
3. Keep a ‘care’ diary to record the time either that you spend looking after a family member who is the victim of clinical negligence or that family members spend looking after you

Summary

There are many excellent, dedicated doctors who regularly make judgments based on their experience; very occasionally they will make a wrong call resulting in a tragic outcome. But this does not mean that they will face a negligence claim – in most cases they will not as there will be no case to answer because a reasonable body of medical opinion will concur that they would have made a similar decision. Where negligence claims will succeed is where the reasonable body of medical opinion agrees that the action taken was not of the standard expected.

Taking on a claim as a patient is not for the faint-hearted. In my experience, people will only come to me as a last resort – and I will only take on their claim if it has merit: more than 85% of our initial enquiries from patients fail the test and are rejected (and these in turn represent a very small minority of patients who have been treated). When it comes to medical mistakes negligence is rarely the reason for making a wrong decision. However, where there has been a clear failure to follow accepted procedures and negligence is a factor, there is an established process to follow.