Delayed or Misdiagnosis of Cancer Claims

The diagnosis of cancer for the patient and the family is devastating news but dealing with a delayed cancer diagnosis or a misdiagnosis of cancer is even more worse.

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The diagnosis of cancer for the patient and the family is devastating news but dealing with a delayed cancer diagnosis or a misdiagnosis of cancer is even more worse.

The failure to diagnose and treat cancer in a timely manner can change the patient’s overall prognosis, it can also hasten their death or some cases reduce their prospects of recovery.  Cancer is more likely to be treated successfully if diagnosed early but around 110,000 cancer patients a year are diagnosed too late.

Cancerous cells can grow and reproduce at remarkable speed in a specific part of the body.  Left untreated the cells can attack and destroy healthy tissue. Abnormal cells can turn into a lump which is known as a tumour.

Acting for patients treated for gastroenteritis instead of their real ailment such as stomach cancer has given us an insight in the avoidable suffering on clients and their families. 

Types of cancers medical negligence claims

  • Stomach cancer
  • Breast cancer
  • Lung cancer
  • Bowel cancer
  • Prostate cancer
  • Skin cancer
  • Testicular cancer
  • Cervical cancer
  • Ovarian cancer
  • Throat cancer
  • Pancreatic cancer

Missed diagnosis and delayed diagnosis of cancer

This can happen when a patient is told they have nothing to worry about and they are in good health when in fact there are symptoms which if identified earlier would have improved the chances of recovery.  Delayed diagnosis happens when a correct diagnosis is made later though there were chances of making an earlier diagnosis resulting in the patient starting the treatment later.  The impact of both these errors can mean the difference between life and death sometimes, especially when a window to treat the patient is lost.

The earlier the cancer is diagnosed the better the patient’s chances of survival and sometimes overall recovery. 

Best Practice

Medical professionals have a duty of care to ensure thorough, careful checks, investigation and tests are done to assess the patient’s condition. When cancer is suspected the medical professional should follow the guidelines as outlined by NICE.  These are best practice guides and evidence based recommendations for health care professionals in England.

What damages you may recover if your claim is successful?

  • Damages for pain and suffering for both physical and psychiatric trauma
  • Loss of past and future earnings
  • Cost of care and assistance
  • Prescription and medical treatment fees
  • Cost of adaptation in the home and transport costs
  • Out of pocket expenses
  • Specialist care aids and appliances
  • Costs of assistance for household chores
  • Travel expenses to and from hospitals for medical treatment

There are approximately 900,000 medical accidents in the U.K which occur either in the NHS or private hospitals. This means thousands of people suffer needlessly due to medical / clinical negligence.

How to prove medical negligence?

In order to succeed in making a claim the law requires the Claimant to prove

1. That the standard of care received was well below that of a reasonable competent health care professional in that field of medicine. This is known as breach of duty of care.

And

2. That as a result the Claimant has suffered a physical and psychiatric injury as a direct result of the care they did receive or did not receive. This is known as causation.

Both these tests must be proved in order for a case to succeed so if breach of duty is proved but causation cannot be proved then the claim will not succeed.

What are the time limits in medical negligence claims?

There are strict time limits in law and it is important that if you think there was negligence you seek legal advice at the earliest possible opportunity.

The law allows the Claimant three years from the date of the negligence or from the date of knowledge from when the claimant became aware of the negligence.  If the Claimant is not able to confirm the date of knowledge then it is best to assume that the three years period runs from the date of the incident so as to ensure the claim is made within the 3 year Limitation period otherwise  the claim will be out of time.

There are exceptions to this time limit-

  • For a child claimant who is under the age of 18 the 3 year period does not start to run until their 18th birthday. This means they have until their 21st birthday within which to make a claim otherwise their claim will be out of time. This means their claim must be settled or Court proceedings must be issued before their 21st birthday to avoid the claim being time barred.
  • Where a Claimant does not have mental capacity
  • Where the Claimant suffers a temporary mental disability then the time does not run until mental capacity returns

Where the person injured dies the three year time limit runs from the date of death provided the original medical negligence claim is not time barred by the time of death.

What are the steps for making a claim?

If you believe you have suffered medical negligence at the hands of the NHS, or any other health care provider, then these are the steps for making a claim:

  1. Establish that medical negligence has occurred and as a result of which you have suffered damage.
  2. Make a complaint to the NHS Complaints team or to the relevant G.P. practice or private care provider, within 12 months of the incident taking place or within 12 months of you becoming aware of the negligence, this being within 12 months of your date of knowledge.
  3. Send a formal letter of complaint, if on receipt of their reply you remain dissatisfied, take legal advice.
  4. As your Solicitor we will gather evidence of your case before we put forward a civil claim for compensation against the negligent healthcare provider. If your case has merits and the defendant dispute your claim then we may advise you to proceed to Court if we cannot settle the case without litigation.

What is the NHS complaints procedure?

As most cases are against the NHS it is possible for you to submit a complaint within 12 months of the negligence before pursuing a compensation claim. You can do this by sending a letter of complaint yourself to the hospital whom you hold to blame, this will cause the hospital to investigate your complaint and provide a response to your letter of complaint.  This is something you can do yourself but if you would like us to assist you then we can do this for a fixed fee. If on reviewing the response we consider you may have an arguable claim then we may agree to waive the fixed fee.

How claims are funded?

There are various ways to fund this claim-

  • Legal aid / public funding this is available for some birth injury claims such as cerebral palsy and erb’s palsy claims.
  • No win no fee agreement, this is a Conditional fee agreement with the benefit of a before the event or after the event insurance policy to protect the Claimant against any adverse costs
  • Legal expenses insurance
  • Trade union membership

We can assist you on a no win no fee basis with the benefit of an insurance cover to protect you against any adverse costs.

What to do next?

If you would like to have an informal chat with our Clinical Negligence experts in confidence to see if you have a viable claim then please complete the contact form and we will give you a call back at a time convenient to you or please call/ contact Daxa Patel, Clinical Negligence Partner & Solicitor by contacting us on 0330 107 0107 or email d.patel@imd.co.uk or info@imd.co.uk.  Once we are contacted by you, one of our helpful team members will contact you.   

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