Clinical Negligence

FAQs on cancer misdiagnosis and negligent treatment claims

According to Cancer Research UK, someone in the UK is diagnosed with cancer every two minutes with breast, prostate, lung and bowel cancers together accounting for over half (53%) of all new cancer cases.

The good news is that cancer survival rates are improving and have doubled in the UK over the last 40 years. More than half of people diagnosed with cancer in England and Wales now survive their disease for ten years or more. This is partly thanks to the rapid pace of treatment advances across the spectrum of cancers – primarily in immunotherapy but also seen in systemic chemotherapy, targeted chemotherapy, surgery, and radiotherapy.

But survival rates are not always determined by treatment. A significant factor in achieving a good outcome for cancer patients is the timing and accuracy of diagnosis. Cancer misdiagnosis or late diagnosis through failures in medical care can result in increased distress, the need for greater medical intervention and a potentially reduced survival rate.

In recent years our specialist solicitors have supported many individuals and their families during cancer negligence claims for substandard care resulting in a delay in diagnosis and a poorer prognosis than should have been the case.

What circumstances could give rise to a claim for clinical negligence in cancer care?

In most cases the fact that a patient has developed cancer is not something that could have been predicted or prevented. But there are some cases where the risk factors for developing cancer have not been properly identified or acted upon sufficiently early to prevent the development of cancer entirely.

The majority of cancer negligence claims relate to delays in reaching a diagnosis, advice given about treatment, management decisions or the performance of medical intervention – be that surgery or other treatment.

Scenarios that may give rise to a negligence claim include the following actions or failures to act by GPs, oncologists, surgeons and other medical professionals:

  • failing to recognise signs or symptoms as being potentially due to the presence of cancer and to either ask appropriate questions, arrange investigations, and/or make an appropriate or urgent referral
  • failing to act upon or delay in acting upon test results and/or recommendations
  • the performance and/or interpretation of imaging or other tests
  • arranging inappropriate or inadequate investigations or tests
  • giving inadequate advice about treatment options and the associated risks or benefits
  • failing to provide advice about risk factors for the development of cancer and potential preventative or prophylactic management
  • failing to make appropriate and timely referrals to specialist teams for management or surgery
  • making technical errors during surgery that go beyond the inherent risks of any procedure and result in additional injury
  • failing to provide appropriate follow up after initial treatment
  • incorrect interpretation of biopsy results.

Can I make a claim for cancer misdiagnosis, delayed diagnosis of my cancer or my cancer treatment?

In order to succeed in any clinical negligence claim it is necessary to prove two things:

  • Breach of duty (negligence)  - that one or more of the medical staff providing care did so in a way that would not be supported by any responsible body of such practitioners in those circumstances and
  • Causation - that the alleged negligence has caused damage. This is often the more difficult and contentious part of cases involving diagnosis and treatment of cancer. If, with appropriate care, the development of a tumour would have been likely to have been prevented, then it can be relatively straightforward to identify the consequences of the failings.  However, if the issue is that the tumour(s) should have been identified earlier or managed differently, it can be quite difficult to show that the failings have made a material difference to either the nature and extent of the treatment required or the patient’s long-term prognosis.

In cases involving delay, the impact will be very fact-specific depending on the length of the delay and the type, nature, size and stage of the individual tumour at the point of missed diagnosis.

How can clinical negligence be proved?

Proving clinical negligence is conditional on independent medical expert evidence that addresses the standard of care provided and the effect of any failures. Experts will primarily base their assessment of the case on medical records and radiological imaging but the patient and family’s evidence on when symptoms developed, how they progressed and what happened in terms of response, advice and treatment from medical professionals will also be key.

We obtain a full set of medical records from the patient’s GP and hospitals as well as obtaining witness evidence from the individual concerned. We then consider if there is a negligence claim to be pursued and ask our experts to give their opinion.

We usually require at least two experts in these cases – one who investigates the standard of care provided (eg a GP, radiologist or surgeon) and one or more who address the likely course of events and outcome with proper care (often an oncologist but this can involve multiple experts).  If they are supportive of a negligence claim, we pursue it from there.

How long will a claim for cancer misdiagnosis or negligent cancer treatment take?

Clinical negligence claims do take time, partly because both sides are dependent on medical experts who are busy juggling their own clinical practice and expert witness work and partly as a result of the complexity of the issues involved. 

Cases involving diagnosis and management of cancer are particularly complicated as witness and medical evidence can be crucial and because of the difficulties in assessing causation. For those who have significant health limitations as a result of the events and/or a poor prognosis, we cannot value and settle the claim until we know the likely long-term prognosis and their resulting needs.

We progress everything as quickly as we can but some cases can take two to four years to conclude. However, if liability (negligence) is admitted relatively early, it is sometimes possible to obtain an early payment of some damages (interim payment) to fund treatment and support needs while the case is ongoing.

What are the time limits on making a cancer misdiagnosis or negligence claim?

From the date of the negligence, patients have three years to bring a claim. It must be settled or court proceedings issued by that three-year deadline or patients are ‘time barred’. This is known as the ‘limitation period’. 

Sometimes the period starts to run a little later than the actual date of negligence where patients were not and could not have been aware of any negligence or injury. This can quite often apply in cases involving a delay in diagnosis of cancer where the patient has no reason to suspect failings in their care until a diagnosis is made – in that scenario the three-year period only starts to run at the time of diagnosis. In cases where the patient is under the age of 18, the three-year time limit begins from the date of their 18th birthday. The time limit does not apply for any patients lacking capacity to litigate due to mental impairment rather than physical.

If the patient dies before concluding any claim, the three-year period effectively ‘starts again’ at the date of their death.

Why bring a claim for compensation for negligent cancer treatment?

We always advise people to think carefully before bringing a claim as it takes time and, by definition, involves a focus on the negative as patients recount the events in question.  In the context of cases involving cancer misdiagnosis and delayed or negligent treatment, there can be some very difficult issues to look at such as a patient’s current prognosis, what it would have been with appropriate care, and what they face ahead.  It is therefore very important that anyone considering bringing such a negligence claim knows what will be involved and makes an informed decision about whether or not to proceed.

On the more positive side, for those who have a poor outcome as a result of failings in their care, the difference that bringing a successful claim makes to their life can be significant. Examples of the areas where we can claim and recover damages include:

  • compensation for lost earnings and pension – including considering whether the patient’s long-term working capacity and life has been limited
  • funds for treatment that may improve the condition and quality of a patient’s life – including physiotherapy, pain management, surgical intervention (including treatment available privately but not on the NHS), medication, counselling and psychological therapy
  • funds to pay for care and / or domestic assistance
  • funds to pay for home alterations required as a result of disabilities
  • funds to purchase aids and equipment that could make life easier
  • funds to cover additional travel, holiday and leisure costs.

Do I have to handle the compensation claim myself?

We often find that, although patients may not feel up to managing a case day to day, they are keen to pursue it – either to deal with and get answers to their concerns or because they want to provide financially for their own and their family’s future.

It is common for us to liaise (with permission) with family members and for such family members to take the lead in dealing with the case on a day to day basis.  In some instances, the claimant dies during the course of the claim but wishes it to be continued after their death to provide for their family. We can enable their executors and family to do this.

If you or a family member are concerned about the timing of your cancer diagnosis and/or management of your cancer after diagnosis, we are happy to talk to or visit you on a ‘no obligation’ basis to go through what happened. We can then advise you on whether or not you may have grounds for a clinical negligence claim. 

Please call us on 0800 328 9545, email us on clinnegspecialist@penningtonslaw.com or contact a member of the specialist oncology claims team directly.

For details on FUNDING a cancer misdiagnosis or negligence claim, please click here.


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Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority.

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