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Settlement of claim for failure to advise patient of implications of CT findings and treatment options for increased risk of cancer

Posted: 13/05/2019

The Penningtons Manches specialist oncology claims team has recently settled a claim for the estate and dependants of a patient who died as a direct consequence of not being advised of her increased risk of cancer and given the option of preventative surgery.

The claimant  first visited her GP complaining of generalised abdominal pain and diarrhoea. Her GP found some abdominal tenderness and she was referred for abdominal imaging. A CT scan was performed which showed a thin walled gallbladder. This was followed up by a gastroscopy and a diagnosis was made of gastritis and duodenitis likely to have been caused by the nonsteroidal anti-inflammatory drugs (NSAIDs) which the claimant was taking. No further investigations were carried out and her symptoms improved with adjusted medication.

Approximately three years later, the claimant developed significant abdominal symptoms and was investigated by a gastroenterology clinic team. An ultrasound of the abdomen was performed which stated that ‘the gallbladder wall appears severely calcified with strong acoustic shadow’. The finding of the calcified gallbladder (also known as a ‘porcelain gallbladder’) was specifically communicated in the report but there is no evidence that the clinic nurse discussed this finding with either any senior member of medical staff in the gastroenterology clinic and/or the claimant. A porcelain gallbladder is known to be associated with a higher incidence of gallbladder cancer.

A decision was made by the nurse to discharge the claimant from the gastroenterology clinic and no further follow-up was arranged. Over the next couple of years the claimant continued to suffer with abdominal pain and diarrhoea but found this was managed to some degree with Omeprazole and diet management. However, approximately two years after the ultrasound she experienced a significant increase in pain and nausea and also noted unexpected weight loss.

She visited her GP to discuss these ongoing and increased symptoms. At that consultation the GP mentioned the finding of the calcified gallbladder which was contained in a letter to the GP practice which the claimant had not seen. When she asked about the potential significance of this, she was told by her GP that it was a finding that could be linked with a higher risk of cancer. The claimant’s immediate response was that she wanted to have the gallbladder removed because she had a very significant family history of cancer  and long-term anxieties about the risk of developing cancer herself.

Following that appointment, the claimant carried out her own research about the porcelain gallbladder which confirmed that was an increased risk of developing gallbladder cancer from this condition and strengthened her resolve to have her gallbladder removed to avoid this risk.

In the interim, her GP made a referral for her back to the gastroenterology team and she was seen in the gastroenterology clinic again by the same nurse. Further imaging was carried out and the claimant was told there were still abnormalities on her gallbladder. The clinic continued to offer just a nurse review and it was only on the claimant’s insistence that a doctor be consulted about the findings and that she wanted the gallbladder removed that she was referred to a hepato-biliary team (HPB).

She subsequently had a consultation with an HPB team during which there was a discussion about the potential increased risk of cancer in patients with a porcelain gallbladder and the option of a prophylactic cholecystectomy (gallbladder removal). The claimant felt that, given her family history and her worsening symptoms, she wanted to have the gallbladder removed - particularly as it had already been present for two and a half years without any monitoring.

She underwent surgery to remove the gallbladder but sadly the surgery revealed a tumour which was already quite advanced and had spread. The claimant underwent treatment but ultimately a cure was not possible and she passed away.

The Penningtons Manches specialist oncology claims team investigated the case on the basis that no steps had been taken following the finding of the porcelain gallbladder and that, had the claimant been properly advised at the time of her ultrasound scan, she would have elected to have a prophylactic cholecystectomy at that time because of her concerns about developing cancer.

After investigation and obtaining expert evidence, the team alleged that despite the nurse receiving the ultrasound report and clearly being aware of the finding of the porcelain/calcified gallbladder (as evidenced by her letter to the GP), she did not notify the claimant of the finding and its potential implications. She also appeared not to have considered any significance from this finding and took no action to recommend further investigations and/or refer the matter for senior medical review.

It was alleged that either she should have been aware of the potential significance and clinical implications of a porcelain gallbladder - in which case she should have raised these with the claimant and advised referral either to a senior consultant in the gastroenterology team or an HPB surgeon to discuss the options - or she should have realised that she did not know the potential significance of the finding on ultrasound and sought advice from a senior member of the medical team. It would be a basic expectation of any health care professional that if they encounter a finding with which they are unfamiliar they should seek competent medical advice.

Based on expert evidence from both a gastroenterologist and an HPB surgeon, any competent gastroenterologist presented with a patient with a finding of a porcelain gallbladder would either have discussed with them the increased incidence of cancer and the option of a prophylactic cholecystectomy and/or referred them to a multidisciplinary team (MDT) or directly to a  HPB surgeon for this purpose.

Any competent HPB surgeon presented with the claimant’s ultrasound results would have discussed with her the known increased risk of cancer with a porcelain gallbladder and the option of a prophylactic cholecystectomy as well as other options for more conservative management.

It was the claimant’s clear evidence that, given her long-term anxiety about her risks of cancer arising from her family history, she would have wished to proceed with a prophylactic cholecystectomy. That anxiety and wish was entirely borne out by her actions as soon as she was notified of the porcelain gallbladder and its potential significance two years later.

Based on oncology evidence, it was the claimant’s case that, on the balance of probabilities, the tumour would have been present by the time of likely surgery (which would not have been an urgent procedure at that time) but would have been T1a, a small tumour with no spread, and confined to the inner wall of the gallbladder without lymph node spread. A Stage 1 cancer means that  the tumour margins are free of tumour.

It was her case that she would have undergone the prophylactic cholecystectomy followed by further surgery to remove the tumour and would probably not have required any further treatment and the surgery would have been curative.

But by the time she received the surgery, the  staging of her cancer was T2N1M0 (Stage IIIb) and ultimately she was not cured and passed away due to the cancer and its spread. The failure therefore to take appropriate action in response to the finding of the porcelain gallbladder made the difference between the claimant being diagnosed and surgically treated at a time when surgery would have been curative with greater than a 50% chance of survival and a delay in diagnosis to a stage where she developed metastatic spread and could not survive her cancer.

In this case the trust, NHS Resolution, and its solicitors took a very constructive approach to the case. A response to the case as presented was received in a timely fashion and the trust admitted the claim in full. It admitted that the claimant should have been advised of the significance of the finding and her options and had senior medical review and that with appropriate care she would have had the gallbladder and tumour removed at a stage when surgery would have been curative.

Penningtons Manches investigated the valuation of the case and agreed a substantial negotiated settlement that recognised the impact of the failures in terms of consequent financial losses.

Philippa Luscombe, partner in the clinical negligence team and leader of the specialist oncology claims team, comments: “This was an extremely sad case. Our client and her partner went through this process knowing that she had missed an opportunity for treatment that would have saved her life – and knowing what faced her as a result.

“No amount of money can compensate for what they went through. Our experts were very critical of the trust’s failure to provide a senior review of the imaging results and recognise the potential significance of the finding. Interestingly, the trust raised no argument about what the claimant would have done with the information. Her actions when she found out about the porcelain gallbladder and its implications were held to be sufficient evidence of her likely actions if she had been told earlier.

“This was a case where the defence legal team were swift and pragmatic in approach, recognising the importance of speed in this difficult situation. Without doubt that approach helped to resolve this case relatively quickly and on a sensible basis. It is hoped that the trust has taken steps to ensure that something like this cannot happen again, given the avoidable and tragic consequences.”  

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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