Brain tumours and clinical negligence – when can a claim be successfully pursued?

Posted: 30/08/2019

A brain tumour is a growth of cells in the brain that multiplies in an abnormal, uncontrollable way. Brain tumours can be benign (non-cancerous) or malignant (cancerous) and the management and prognosis will depend on the type of tumour, size and location at the time of diagnosis.

Based on 2016 figures, Cancer Research UK suggests that there are around 11,700 new brain, central nervous system and intracranial tumours diagnosed each year. Such tumours are the ninth most common cancer in the UK, accounting for 3% of all new cancer cases.  These numbers are predicted to rise to 22 cases per 100,000 people by 2035.

A number of cases of brain injury that we deal with are clinical negligence claims arising from the diagnosis and management of brain tumours. It is usually - but not always -  the case in these scenarios that the development of the brain tumour itself is considered to be ‘one of those things’ and would always have occurred, but that the patient’s outcome has been adversely affected either because there has been a delay in diagnosis and/or errors in the management of the tumour.

To succeed in a clinical negligence claim you need to provide evidence of both breach of duty (negligence) and causation. These are defined as follows:

Breach of duty (negligence) - this is when a medical practitioner or team of medical practitioners has acted in a way that no responsible body of doctors / surgeons / radiologists / anaesthetists would do in the same circumstances.

Causation - this is when the individual has ended up worse off or suffered injury as a direct result of that negligence (if proved). In this context, we are usually looking at whether the person would have needed more extensive treatment or suffered additional injury and/or whether their long-term outcome and prognosis has been adversely affected.

Given that, in most cases, a tumour would have been present or developed which needed intervention and there are inherent and recognised risks involved in managing brain tumours, it can often be difficult to show that an individual has suffered additional injury as a result of negligence in their care.

However, there are certain scenarios which we encounter where it is clear there have been failings in care that have significantly compromised the claimant and a claim can be pursued.  Below are five scenarios where a claim could be considered:

• Radiology errors
  • CT or MRI imaging demonstrates an abnormality which should have been picked up and identified earlier
  • An abnormality is wrongly disregarded as being of no concern without further investigation
  • The radiologist identifies an abnormality but does not make appropriate recommendations for follow up
  • Radiology reports that identify abnormalities and advise further investigation or action are mislaid or misfiled or not acted upon
    
    
• GP errors
  • GPs failing to act on recommendations or requests from hospitals regarding further investigations or referrals
  • GPs failing to consider a potentially sinister cause for ongoing symptoms, to refer for investigation or to refer in a timely fashion
    
    
• Opticians
  • Failing to identify and act upon abnormalities demonstrated on visual testing
    
    
• Surgical errors
  • Failing to properly discuss the treatment options available to a patient and/or the relative risks and benefits of proposed treatment, thus failing to obtain informed consent
  • Failure to advise or pursue conservative management where this was a viable option
  • Inadequate pre-operative preparation by way of imaging or having an appropriate team in place
  • Embarking on complex surgery with insufficient expertise
  • Using an inappropriate surgical approach to surgical removal
  • Failing to identify and properly manage signs of complications during surgery
  • Equipment failures
    
    
• Secondary tumours

These are the cases where the brain tumour develops as a result of spread from another primary tumour in the body. 

In the clinical negligence context we deal with claims where there has been a delay in diagnosis and/or inappropriate management of the initial primary tumour which has resulted in spread which could otherwise have been avoided.  

In these cases we could be alleging that the patient / claimant would never have developed a brain tumour at all with appropriate care.

What damages can be claimed?

If a claimant can show that there has been negligence in their care and that with appropriate care they would have had a better outcome, damages can be claimed for the following:

• pain and suffering for extended and avoidable periods of symptoms
• pain and suffering for intervention that would not have been required with appropriate care
• pain and suffering for avoidable brain injury and its effects
• pain and suffering for knowledge of delayed diagnosis and the resulting reduced life expectancy
• loss of earnings – past and future
• medical costs – past and future
• additional care and assistance required – past and future
• therapy and support needs
• accommodation, transport and equipment requirements
• financial and services dependency of the family of a claimant who dies before any case is concluded and which is attributable to failings in the claimant’s care.

These cases are usually complex, particularly in terms of determining a patient’s prognosis with non-negligent care compared to negligent care and will require very specialist medical expert advice. 

They are also quite difficult for claimants and their families to manage as the focus is very much on an individual’s outcome and/or prognosis and if that has been adversely affected. However, where failings in their care have had a significant impact, a successful claim can make a difference in providing funding for treatment and support and alleviating financial concerns.

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