We have secured settlement for a client who pursued a clinical negligence claim on behalf of the estate and dependants of his late wife.
His wife was an NHS patient and, in early 2013 began experiencing some abdominal pain and bloating. She attended her GP and was referred for an ultrasound scan. The scan showed a large endometrial polyp which would ordinarily need to be investigated. Subsequently, however, her abdominal pain worsened and she attended Worthing Hospital. A CT scan identified quite a significant infection which required treatment before the endometrial polyp could be addressed.
After the abdominal infection settled down, her endometrial polyp was investigated. A hysteroscopy was performed in July 2013, which revealed a large suspicious looking polyp. A biopsy was taken, suggesting the presence of a Grade 3 endometrial adenocarcinoma, which is a high grade cancer that is more likely to spread to other areas of the body.
The deceased underwent an MRI scan in August 2013 to help stage her cancer. The MRI scan showed enlarged lymph nodes, which is a sign that cancer has spread. Her case was then discussed at a multidisciplinary team (MDT) meeting at Royal Sussex County Hospital to determine the appropriate treatment to manage the cancer.
The doctors present at the MDT meeting considered the MRI scan. They erroneously concluded that the lymph nodes were enlarged because of the previous infection. The biopsy demonstrating high grade cancer was not taken into account at all. The doctors concluded that the deceased had low grade cancer that had not spread and recommended her for hysterectomy only.
Surgery was performed in early September 2013. The surgeon, during the procedure, took a biopsy of her colon and perforated the bowel wall. This caused her to develop a fistula.
Post-operatively she was advised that surgery had been a success and that the cancer had been removed completely. The fistula that she developed was treated conservatively with medication and she was advised that she did not need any further treatment for her cancer, such as chemotherapy or radiotherapy.
During the subsequent eight months, our client experienced humiliating and embarrassing problems with the fistula, which caused her to be socially withdrawn. Eventually she was advised to have the fistula treated surgically. It was only during that surgery, in June 2014, that the surgeons involved in her care recognised the extent of her cancer, which had spread significantly.
After the operation, she was advised of her extensive cancer, from which she would not recover. She passed away two months later.
We were approached and instructed by her husband, who was concerned about failings in his late wife’s care. We instructed an expert gynaecological surgeon who considered that the doctors at the MDT were negligent for not taking into account the biopsy that suggested high grade cancer and for ruling out the enlarged lymph nodes as being suggestive that the cancer had spread. The expert considered that the doctors at the MDT should have acknowledged the prospect that the deceased had high grade cancer and the recommendation should have been for more extensive surgery and intra-operative biopsies in order to accurately stage her cancer.
An expert oncologist confirmed his opinion that, had the surgeon taken appropriate biopsies during surgery then our client’s wife would have been given a final diagnosis of high grade cancer. She would have been advised to undergo chemotherapy and radiotherapy. It was acknowledged that she would always have passed away from her cancer, but she would have survived for a further 14 months but for the negligence in her care. The expert surgeon also considered that the surgeon had negligently perforated her bowel during the surgery.
A letter of claim was sent to the defendant trust setting out the formal allegations of negligence. An early offer to settle the claim was also sent as we considered this case quite capable of early settlement owing to what we found to be very clear negligence. The defendant trust denied the allegations and argued that the care provided to the deceased was acceptable: there were no mistakes in staging her cancer and the surgeon did not negligently perforate the deceased’s bowel.
As a result of the denial, court proceedings were issued and served on the trust. The claim proceeded through the court timetable until after exchange of expert evidence, which is a very late stage in proceedings. At that point the defendant’s solicitors began making offers to settle the claim. After some negotiation we were able to achieve settlement of our client’s claim for £500 less than the amount that was offered to settle the claim over two years earlier.
This was a sad case in which we were acting for a grieving husband who wanted answers in response to the mistakes made in his late wife’s care. The claim was pursued on behalf of the estate and her dependants by her husband as the executor to the will. This right to pursue a personal injury claim when a person has died is bestowed upon the executor of the deceased’s will under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.
This case is also a reminder of the difficulties claimant solicitors face in pursuing genuine clinical negligence cases. Once we obtained supportive evidence, we considered this case should have been capable of quite a quick resolution. We made a reasonable offer to settle the claim when the allegations were first presented to the trust. The solicitors for the trust, however, denied the claim for over two years. Their denials and refusal to engage in sensible settlement negotiations, only then to agree settlement of the claim for a small amount less than had been offered two years earlier, caused the claim to drag on for longer than it might otherwise have done and caused costs to increase significantly. Had the trust taken a more pragmatic and sensible approach at an earlier point, the costs involved in pursuing this claim would have been considerably less than they were.
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