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Penningtons Manches settles claim for delayed diagnosis of lung cancer

Posted: 14/07/2016

Penningtons Manches has settled a claim against Kingston Hospital NHS Trust for a delayed diagnosis of lung cancer.

The client was in his 50s and a regular smoker but was otherwise seemingly fit and well. He saw his GP complaining of a persistent cough that he had had for over three weeks. The cough was initially treated with antibiotics but, when they failed to improve the symptoms, he was sent for a chest X-ray which was reported to be clear.

The cough persisted and he was referred under the two-week rule for suspected cancer to the ENT department at the trust. The GP thought that the cause was likely to be throat-related rather than the lungs, given the normal X-ray, so the referral was not made to the respiratory department.

The client was seen in the ENT department complaining of a foreign body sensation in his throat, a persistent cough and reflux. He was treated with an inhaler and indigestion tablets but the cough persisted. A barium swallow was ordered which was shown to be normal. He was discharged from the hospital on the basis that there was no ENT cause for his symptoms.

The cough continued to persist and four months later our client developed severe haemoptysis (coughing up blood) and was admitted to the A&E department of the trust by ambulance. Further radiology and investigation by the respiratory physicians revealed that he had advanced lung cancer. The lung tumour was inoperable due to its size and location and chemotherapy treatment was palliative only. Within a year, the tumour had metastasised and the client died.

The Penningtons Manches clinical negligence team obtained expert evidence which confirmed that the ENT doctor at the trust was negligent for failing to consider a respiratory cause of the client’s persistent cough. Given the history of chronic cough - in a recent ex-smoker -  which had persisted for several months and had not resolved despite treatment, the ENT doctor should have investigated the lower respiratory tract again. This could have been done by either referring the client to the respiratory physicians or ordering a repeat chest X-ray or a CT scan himself. Any of these options would have led to the discovery of the cancer at an earlier stage.

At the time when the cancer should have been diagnosed, it was smaller and would have been amenable to surgery. As it was an aggressive tumour, several months of delayed diagnosis made a material impact on the extent to which the cancer could be successfully treated. Although the cancer would not have been completely curable at the earlier time point, surgery to remove the primary tumour would have given the client a prolonged life expectancy of one to two years, during which he would have had a further period of stability and more time to come to terms with his prognosis and prepare for his death. He would have avoided the anxiety and distress of knowing that the diagnosis of cancer had been too late.

A letter of claim was submitted to the trust and the claim was settled at an early stage after Part 36 negotiations with the NHS Litigation Authority.

Commenting on this case, Lucie Prothero, senior associate in the Penningtons Manches clinical negligence team who specialises in delayed diagnoses of cancer cases, said: “This settlement comes as Public Health England (PHE) launches its annual Be Clear on Cancer campaign, which aims to educate the public about the signs and symptoms of the most common forms of cancer and to encourage them to see their GP when they occur.

“This year the campaign focuses on raising awareness of the warning signs of lung cancer and is predominantly aimed at men and women aged 50 and over. PHE highlights that older people are most at risk of lung cancer, which is the biggest cancer killer in the UK, accounting for about 28,400 deaths each year.

“The campaigns warns people with persistent coughs that last three weeks or more, or who get out of breath doing things they used to be able to - such as running for a bus or mowing the lawn -  to see their doctor. As with many types of cancer, early diagnosis greatly increases the chances of successful treatment. PHE estimates that 80,000 people in England have lung cancer without even knowing.

“We regularly deal with cases of delayed diagnosis of cancer and all too often we see the devastating consequences of ignoring symptoms for too long. We fully support the Be Clear on Cancer campaign to raise public awareness and improve early detection rates.”

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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 under number 419867.

Penningtons Manches Cooper LLP