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Claim settled for lung cancer sufferer against Princess Royal Hospital for failure to investigate lung abnormality

Posted: 04/12/2017

At a time when radiological investigations of chest X-rays are topical due to identified failures at the Queen Alexandra Hospital in Portsmouth, the clinical negligence team at Penningtons Manches LLP has settled a claim against Princess Royal University Hospital in Kent for a radiologist’s failure to respond correctly to a lung abnormality on a patient’s chest X-rays. This resulted in him losing the likely prospect of curative surgery and being faced with a terminal illness by the time of his actual diagnosis.

The patient had always been a fit and active individual, and at the time of the events in question he was 40 years of age and in good health. He was a non-smoker (and always had been) and had no notable family history. In 2011 he was due to undergo nasal surgery, and as part of the preparation for this required a chest X-ray which was performed at the Princess Royal Hospital. The radiologist noted: ‘There is a 17mm opacity in the left mid zone. I suppose this could be inflammatory and a repeat chest X-ray with the left lateral is recommended following a course of antibiotics.’ The patient was correctly prescribed a course of antibiotics by his GP, and he subsequently attended an X-ray at the Princess Royal a few weeks later to see if the 17mm area identified by the radiologist had reduced / resolved as a result of the medication. This time the radiologist noted: ‘Clinical history: previous chest X-ray showed left mid zone shadow. X-ray chest: comparison is made with the previous X-ray of December 2011. The previously noted 1.7cm opacity in the left mid zone persists. This may present a pleural plaque. The rest of the lung fields are clear. If the patient is symptomatic I would recommend a referral to a respiratory physician with a view to investigating his left mid opacity.’ The GP was aware that the patient had no symptoms of concern and so no follow up was arranged.

In the summer of 2015, the patient began to develop joint and back pain and so underwent an MRI scan which showed likely bone cancer. Further investigations were almost immediately commenced and shortly afterwards he was diagnosed with metastatic lung carcinoma. He was told from the outset that his condition is terminal and too advanced for any cure. While he has been undergoing treatment, this is palliative only and his disease is progressing, meaning he has a significantly reduced life expectancy.

Penningtons Manches was instructed to act for the patient, following concerns raised by the clinical team investigating the nature of his tumour and its spread, that his lung cancer may have be present at the time of the X-ray performed at the Princess Royal Hospital back in 2012.

The firm’s clinical negligence team obtained expert evidence from a consultant radiologist who was supportive of a claim against the radiology team at the Princess Royal Hospital on the basis that, at the time of reviewing the second chest X-ray, the radiologist had identified a 1.7cm abnormality which had not responded or changed in any way as a result of antibiotics. It was therefore extremely unlikely to be inflammatory. The radiologist should have considered the potential for this to be an intrapulmonary nodule and in the circumstances, the only appropriate course of action was urgent referral to a chest physician for CT scanning and other investigations. The consultant considered that there was a complete failure on the part of the radiologist to take appropriate action and to make an urgent referral via the patient’s GP and/or directly onto a respiratory team for a CT scan. He was of the opinion that to advise a review only if the patient became symptomatic and not to recommend any further investigation was entirely unacceptable and fell below an appropriate standard of care. It is well known that lung cancer is often asymptomatic until a late stage, and to suggest investigation only if and when a patient becomes symptomatic when an abnormality is clearly demonstrated on a chest X-ray would be entirely inappropriate.

There were various guidelines in place at the time (including from NICE), all of which would indicate that a lesion such as this should have been regarded as suspicious and an urgent referral made, whether or not the patient was symptomatic.

Expert oncology opinion was then sought, and both specialists were in no doubt that the lesion identified on the chest X-ray in January 2012 was the lung tumour seen on the CT scan in November 2015. It was their opinion that had the radiologist taken appropriate action and advised the patient’s GP to make an urgent referral through the expedited two week cancer wait pathway, he would have received a referral to the local chest physician in early February 2012, undergone a CT scan, and on the balance of probabilities a PET scan and biopsy within four weeks of visiting the respiratory physician, and a diagnosis would have been made. It was also the specialists’ view that given the reduced size of the lesion in February 2012 and the fact that it was over three and a half years before metastatic spread was identified, at the time of the missed diagnosis the tumour would not have spread, meaning that the surgery would have been curative.

A case was therefore presented to the hospital on the basis that the radiologist had been negligent in not arranging further follow up to investigate the lesion. It was alleged that with timely diagnosis, the patient would have survived and had a normal or very near normal life expectancy, but as a result of the delayed diagnosis he would not survive the disease and had a very limited life expectancy.

As a result of this breach of duty by the radiologist, the patient claimed for the severe pain and discomfort he has suffered through the side effects of treatment, the chemotherapy treatment he has to undergo, his health deterioration and ultimately his death. He also claimed for future aids, equipment and care that will be required as a result of his deteriorating and terminal condition, loss of earnings to date, and ongoing loss of income in relation to future lost years of life.

A letter of claim was submitted on the basis of the above evidence, which the trust investigated promptly. It made a full admission of liability and apologised to the claimant. Penningtons Manches disclosed the evidence in support of the valuation of his claim and the parties engaged in a successful settlement meeting.

Philippa Luscombe, partner in the clinical negligence team at Penningtons Manches who led the team, said: “This is a tragic case – our client was very badly led down by the radiologist who could and should have ensured that the lesion was investigated as its nature and cause was unknown. Action at that time would have resulted in a cure and no ongoing problems. Instead our client has not only suffered the awful scenario of being diagnosed with terminal cancer at a young age, but also knows that it should have been avoided entirely. While he has recovered substantial damages, no amount of money can make up for what he has suffered and will continue to suffer for the remainder of his life. What should be said, however, is that the approach of NHSR (which deals with clinical negligence claims against NHS trusts) and its solicitors, Kennedys, has been exemplary. They fully complied with the pre-action protocol and made prompt and full admissions with proper expressions of regret. Realising that our client has a limited life expectancy, they prioritised the case so as to achieve a settlement at a time when it will make a difference to him and his family. This approach has meant a great deal to our client, and is a good example of how litigation can work in an open and efficient way, which in turn keeps legal costs down.”

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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