Clinical Negligence: Delay in diagnosing cancer: a bittersweet result

We recently represented a lady (and, following her tragic death in April 2013, her extended family) in a medical negligence action against her local hospital for the delay in diagnosing her breast cancer.

In March and June 2003, the doctors at the hospital in question negligently failed to comply with the national protocols for triple assessment of patients of our client's age presenting with a breast lump. Such patients ought to have undergone clinical examination, mammography and pathological examination. On both occasions in 2003, when our client attended at the breast clinic at her local hospital, the doctors in question failed to have a mammogram performed.

It was not until April 2005 (i.e. two years later) that our client was finally diagnosed with breast cancer. By this time, the cancer had spread throughout her body and she was given a terminal prognosis.

Had our client been given a mammogram in either March or June 2003, the expert evidence we obtained was that her cancer would have been detected, that she would have received surgery with follow-up radiotherapy and possibly chemotherapy, that she would have been prescribed adjuvant therapy (such as Tamoxifen) and, on a balance of probabilities, would have been cured. Although there was a risk of recurrence, that risk was less than 25% and, even if her cancer had recurred, there was no reason that it, too, could not have been successfully treated.

Owing to no offers of settlement having been made by the Health Board responsible for the acts/omissions of the doctors employed by it at the hospital in question, a court action was raised by our client in 2008 against the Health Board. The Health Board defended the court action in respect of negligence, causation and quantum of damages.

We had to undertake extensive investigations into this claim, instructing 10 different expert witnesses, to provide the necessary opinions to prove our client's case. Great difficulty was encountered in obtaining information and gaining access to relevant witnesses from the Health Board but we were relentless in our requests.

Meantime, our client valiantly fought her illness, undergoing course after course of chemotherapy, radiotherapy and other treatments to try and extend and improve the quality of her life.

A proof (ie civil trial) was set down to take place over 4 weeks in June-July 2013. Tragically, our client lost her battle with her cruel disease in April 2013. However, her claim did not die with her but passed to her executor who took up the claim on her behalf. In addition, our client's husband, children, siblings, mother and grandchild were entitled to make claims in their own right in respect of the loss of their loved one.

Two weeks before the proof, the Health Board finally admitted liability for the negligence of its two doctors who had seen our client in 2003. It admitted that, had there been no such negligence, our client would have been cured of her cancer and she would not have died prematurely.

It was not until the day before the four-week proof was due to start that the Health Board finally made an acceptable and very substantial offer of settlement to resolve the case.

Although pleased with the successful outcome of their claim, without having to undergo the ordeal of giving evidence in court, our client's family has been left with the knowledge that the loss of their loved one was entirely avoidable if the doctors in question had simply followed the correct protocols.