The clinical negligence team at Penningtons Manches LLP has settled a claim against two GPs for failure to adhere to NICE guidelines and refer a patient for investigation of an ongoing cough – which transpired to be due to the presence of a lung tumour.
The patient had been a heavy smoker but had given up the habit because of concerns about the risks and due to a family history of cancer.
She developed a cough in mid-March 2012. Initially, she thought that this would go away of its own accord but after two weeks when it remained, she arranged an appointment to see her GP who prescribed antibiotics. A few days later she returned to her GP expressing concern about the cough. She was again reassured and told to complete the course of antibiotics. Over the next month she attended her GP practice on a further two occasions and requested a referral for investigation. She visited the practice again in May and despite having now had an ongoing cough for over two months, she was again reassured.
It was only when she reattended in July 2012 that a different GP took any action. However, he only arranged a sputum test, which was clear. No referral was made and he did not arrange a chest X-ray. In October 2012 the patient underwent a CT scan for an unrelated liver complaint. The scan imaged part of her lung and identified a lung lesion. Further investigation resulted in the diagnosis of a stage T3N0M0 moderately differentiated adenocarcinoma.
Despite surgery and chemotherapy it was not possible to cure the cancer due to its advanced stage and she died in August 2014.
Penningtons Manches was instructed by the patient’s husband to investigate their joint concerns that she had not received appropriate care from her GPs and that the persistent cough should have been investigated. The firm’s clinical negligence team obtained expert GP evidence which confirmed that the standard of care provided in some of the consultations fell below an acceptable standard and amounted to a breach of duty of care. Specifically it was alleged that at the appointments at the end of April and in May 2012 the GP failed to act in accordance with NICE guidelines. The patient’s cough had been present for approximately five and nine weeks at the respective appointments.
It was further alleged that any responsible body of general practitioners would have made an urgent referral for a chest X-ray under the two week rule and that no responsible body would support the failure to refer for an X-ray at this time.
Penningtons Manches obtained expert evidence from an oncologist who looked at what would have happened following a referral in April or May 2012, as opposed to the incidental finding in October. Based on his evidence, it was alleged that on the balance of probabilities, a diagnosis would have been made at a time when the tumour was smaller. The patient would still have required surgery, radiotherapy and chemotherapy but by starting treatment at an earlier stage, her life expectancy would have been extended by a number of months and her symptoms would have been much better managed, thus improving her quality of life.
A claim was brought for her estate under the Law Reform (Miscellaneous Provisions) Act 1934 in respect of her personal injury, pain, suffering, loss of amenity and loss of life expectancy. Another claim was made for her husband as a dependant under the Fatal Accidents Act 1976, covering loss of financial and services dependency and statutory bereavement damages.
Letters of claim were submitted to the two GPs who were alleged to have provided inadequate care. The Medical Protection Society dealt with both claims and while no formal admissions of liability were made, it entered into negotiations to reach a settlement.
Philippa Luscombe, who leads the specialist oncology claims team at Penningtons Manches, comments: “All cases involving a delay in diagnosis in cancer are hard to deal with. In this case both the deceased patient and her husband felt that she had been let down. In the end we were able to assess that the failures had not ultimately made a difference to the patient’s prospects of survival but had meant that she and her husband lost out on a number of months of additional life expectancy and had a much more difficult time than would otherwise have been the case. Although no formal admissions of liability were made, it is hoped that the investigation and settlement will have resulted in lessons being learned by the GPs and their practice.”