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Lung cancer: a difficult diagnosis with far-reaching consequences

Posted: 15/10/2020


Lung cancer is one of the most common and serious cancers, with approximately 47,000 people diagnosed in the UK each year. In terms of those most affected, the older generation and smokers or ex-smokers are in the highest risk category, with 4 out of 10 lung cancer cases being diagnosed in people who are aged 75 or over, and approximately 72% of all cases diagnosed in those with a history of smoking. However, it is important to remember that non-smokers can also develop the disease. Unfortunately, lung cancer can be a difficult form of cancer to diagnose, since there are often no symptoms in the early stages, and symptoms - when they do develop - can be linked mistakenly to other illnesses or conditions.

Symptoms of lung cancer include:

  • a persistent cough;
  • coughing up blood;
  • persistent breathlessness;
  • unexplained tiredness and weight loss; and
  • painful breathing or coughing.

Treatment varies depending on the patient’s general health and the stage of the cancer’s spread. Earlier diagnoses can be treated by surgery or radiotherapy, while chemotherapy is used when the cancer has spread further. The delayed display of symptoms can make this disease particularly dangerous and difficult to diagnose at a sufficiently early stage to allow for removal of the cancer or treatment to slow its progression.

Penningtons Manches Cooper acts for patients who wish to pursue a claim arising from delayed diagnosis of cancer or sub-standard oncology treatment. Recently, the team assisted with two very different cases in respect of negligent lung cancer treatment: acting for a patient who was wrongly diagnosed with lung cancer and then subsequently lost their voice and swallowing ability as a result of an unnecessary operation, and also advising a husband in bringing a claim on behalf of his wife who tragically passed away following a missed lung cancer diagnosis.

In the case of the delayed diagnosis, the client’s wife initially showed symptoms of a severe cough, which had persisted for three months. She had a chest x-ray but an area of abnormality was only spotted and investigated one year later, at which stage the problem was incorrectly believed to be ENT (ear, nose and throat) related and, since nothing of concern was identified, she was discharged from the ENT clinic. As her condition worsened and she experienced shortness of breath, lethargy and a worsening cough, she had a second chest x-ray and lung cancer was finally diagnosed. Sadly, by this time, the cancer was too far developed for any treatment other than palliative care and she passed away just six weeks after her diagnosis.

The deceased’s husband, the clinical negligence team’s client, brought a claim for clinical negligence against the hospital. His case was that had the initial x-ray been followed up with further investigations as it should have been, his late wife’s lung cancer would have been diagnosed earlier and probably in time to allow for successful surgery, saving her life. The defendant hospital accepted that they had breached the duty of care they had owed to the deceased and had acted negligently. However, even if, as here, liability is admitted, it can often be difficult to assess the value of damages (compensation) that should be paid, particularly when the claim was brought by the deceased’s husband rather than the patient herself. In this instance, the clinical negligence team was able to obtain a settlement sum from the defendant hospital of £70,000, plus payment of legal costs. This sum reflected the pain and suffering of the deceased, the care provided to her by her family, funeral expenses and bereavement damages, and loss of dependency (meaning the loss of the value that she brought to the household) both in terms of tasks she was responsible for and more generally, as a wife and mother.

Alison Johnson, a partner in the clinical negligence team at Penningtons Manches Cooper, handled both cases and comments: “I urge anyone with any health-related worries to seek medical care without delay. Cancers are invariably more treatable when diagnosed early. Whilst we do see cases of incorrect diagnoses and unnecessary treatment, these are rare compared to the incidents of a delayed diagnosis and sadly a far worse prognosis than there otherwise should have been. It is a particularly worrying period in that patients may have put off seeking medical help due to the Covid-19 pandemic and time might already be against them. Furthermore, treatment may have been side-lined by hospitals directing their attention and resources towards dealing with the pandemic instead. This may well lead to an increase in clinical negligence claims arising from delayed diagnoses of cancer.”

This article has been co-written with Mary Clare Palmer, a trainee solicitor in the clinical negligence team.


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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.

Penningtons Manches Cooper LLP