3rd November 2017
Steve Evans reviews an important recent High Court decision that looks set to undermine defence strategies in delayed cancer diagnosis cases.
The most emotive of all clinical negligence claims involves terminal cancer, the common grievance being that the diagnosis was delayed. This is because cancer is usually curable if diagnosed at an early stage and treated promptly. Tumours can usually be removed and there are various therapies available to treat all cancer patients.
Most cancer sufferers with a terminal diagnosis have “what if” thoughts and agonise over whether doctors acted quickly enough or made the right decision at a moment during investigations. Some cancer victims die with a suspicion that they have been let down by the medical profession and leave loved ones behind tasked to find out what really happened.
I am often involved in cancer cases where the client dies during the legal process and a family member (usually the widow or widower) has continued with the case having made a promise to their loved one to see it through to the end. These cases have added poignancy and require very sensitive handling.
A recent case Muller v Kings College Hospital  EWHC128(QB) deals with the Court’s traditional approach to clinical negligence case with important clarification as to it correct application to delayed cancer diagnosis claims:-
- In clinical negligence claims, the Claimant must pass an onerous legal test in order to establish negligence in law. This was first established by the case of Bolam v Friern Hospital Management Committee  1 WLR 582, and has become known as “the Bolam test”. Under Bolam, in a delayed diagnosis case, the patient must show that no reasonably competent doctor (or hospital) would have made the same error. If he/she cannot do this then the claim will fail. The Bolam test emphasises that not all medical mistakes amount to negligence
- For this reason medical experts appointed by Defendants are often keen to argue that early cancer is very easy to miss and doing so in any instant case was not therefore negligent. They say, for example, that lesion abnormalities are commonly missed on imaging. They do so in order to argue that doctors in an individual case still acted and reported with reasonable skill and care whilst having made a mistake.
- In fact national auditing shows that missing early cancer is not as common as Defendants like to make out. For example, only 9.4% of diagnosed lung cancer cases involve a missed lesion.
- The High Court judgement in the Muller case, handed down earlier this year, has undermined this defence strategy of saying that because a minority of doctors make similar mistakes they automatically have a defence.
- In Muller, Kerr J examined the authorities and made some important findings for cancer diagnosis cases.
- He explains that during the diagnostic process “there is no weighing of risks against benefits and no decision to treat or not to treat; just a diagnostic…decision which is either right or wrong, and either negligent or not negligent”.
- In finding for the Claimant, he made a distinction between ‘pure treatment’ and ‘pure diagnosis’ cases and found that where abnormalities are there to be seen (but sometimes missed) the Defendant has no automatic defence that an error is not negligent.
The conclusion to be drawn is that Claimants can now be more confident that when diagnosis has been delayed as a result of error the Court will properly consider the evidence of competing experts and the facts of the case and WILL NOT just accept the defence position that just because other doctors make similar errors what happened must be ruled as acceptable in the eyes of the law.
Stephen Evans has more than 20 years post qualification experience and has worked at Fairweathers Solicitors as medical negligence solicitor for the past 4 ½ years.
He covers a wide range of work, with a particular interest and specialism in cancer cases.