Clinical Negligence Focus: Cancer Cases and COVID19

There are very few people in the UK who do not know someone who has had cancer, has cancer or has died of cancer. It is unfortunately a big part of our lives, and in 2017 around 1,000 new cancer cases were being diagnosed every day (according to Cancer Research UK figures). Clinical Negligence expert Sarah Ratcliffe examines the issues.

And then in March 2020 the UK (and indeed the world), was hit with what seemed like a bigger, more immediate problem – COVID19: how to stop it spreading and how to prevent the NHS collapsing from the huge burden this new disease was going to place on doctors and hospital services. Now that we can see the light at the end of the tunnel in a COVID19 sense, big question marks have arisen regarding the ongoing and future effect on cancer diagnosis and treatment.

Delayed or missed diagnosis of cancer

Sadly, clinical negligence lawyers see a lot of cancer cases. This is either due to a failure to refer a patient earlier to the relevant specialist once they have raised symptoms with their GP, failure to conduct the correct diagnostic test or to do this in a timely fashion, or failure to then treat the cancer quickly or with the right treatment. Often we represent the family members of someone who has passed away due to a delayed or missed diagnosis of cancer, or the patient sadly passes away during the course of the case.

Proving negligence

In order to prove negligence, the claimant has to firstly prove that the duty of care owed to them by the doctors, was breached. Expert evidence is often required for this bit, and the test is whether a reasonable body of medical opinion in that particular field (for example GPs), would have taken the same action as the doctor in question. Even if some doctors would have taken a different view, as long as there is a reasonable body of doctors who would have done the same as the doctor in question, then there is no negligence.

If, with expert evidence, the claimant can prove the duty of care owed to them was breached, they then have to prove that the breach of duty caused or materially contributed to them suffering a significant injury, or death. In other words, if the outcome would still have been the same, and the claimant would always have had the same course of treatment or had the same chance of survival, even with the breach of duty, then they have not suffered a significant injury, and there is no case.

Expert evidence is crucial

Again, for this second element of the test, expert evidence is crucial. An oncologist (a doctor specialising in cancer) will be required to consider the evidence from the radiology imaging, pathology (tests and microscopic examinations of tissue removed from a biopsy or during surgery), surgical notes and perhaps the patient’s own evidence in relation to the types of symptoms they were experiencing and when. They will be asked to then consider what the likely diagnosis would have been had the patient been referred appropriately earlier, what grade the cancer would have been, how quickly it would have grown, whether it would have spread by a certain point, and what treatment the patient would have been recommended to undergo.

These cases can be complicated, considering complex measurements of tumours, extrapolating backwards to try and determine what the diagnosis would have been, and considering what affect this would have had on the patient’s chances of survival and prognosis. However, despite their complications, they are hugely important cases – meaning quite literally life or death for the client. Even more so if the patient has died leaving a spouse and/or children who were financially dependent on them, and who have now lost an integral part of their family.

The effect of COVID19 on cancer diagnosis and treatment

When the initial effects of COVID19 started to be determined across the UK in March 2020, and it seemed that this virus was getting out of control, quite rightly significant concern was raised regarding how the NHS would cope, and protections needed to be put in place to stop the whole system imploding. On 16 March 2020, cancer screening was suspended and routine outpatients were deferred. Arguably cancer services were disrupted more than was necessary, because we didn’t see the overload that was expected; Nightingale Hospitals stood empty. There is obviously an argument that, if steps hadn’t been taken, chances are the NHS would have been overburdened, and there was no way of knowing. But tell that to the family of the patient who died because they couldn’t receive treatment for their cancer during that time.

There was, and still is, a distinct lack of a recovery plan from the government (and nothing in the budget) on how the country can start to try and deal with the significant effect COVID19 has had on cancer diagnosis and treatment. The backlog of cases is now up to 80,000. 35,000 unavoidable deaths have been predicted, at least. Delays in treatment will cause reductions in patients’ chances of survival. The Catch Up With Cancer campaign has circulated a petition with more than 370,000 signatures, to persuade the government to put as much effort in as possible to try and catch up with the ever increasing backlog. So far, the government does not seem to have taken much notice.

Cancer Cases and COVID19 in a legal sense

Serious concern has been raised regarding the possible affect that these delays and backlog will have on patients bringing legal action. Professor Neil Mortensen, president of the Royal College of Surgeons, and Professor Gary Middleton, a cancer surgeon in the West Midlands, have both recently been quoted in the Guardian as having grave concerns over the possible number of cases, with Prof Middleton concerned that “the likelihood is enormously high that potentially we’re sitting on a legal minefield”.[1]

Concerns were also raised regarding patients who were put off seeing their GPs during the lockdown period. Whilst these cases may add to the backlog figures, it is unlikely they would lead to potential legal action, as a claim cannot be brought if the patient did not actually seek any medical advice.

One key aspect of this will be the handling of complaints, and any Serious Incident investigations which are deemed necessary by a Trust in any particular case. In our experience, if these are handled badly, or the doctors in question are not open and honest enough with the patient and their family, legal action is more likely to follow. This is because not only does the patient or family have the distress of learning of the errors in the first place, they then feel that they have not been treated with dignity and respect when raising concerns about it.

Legal cases are likely to include treatment having been stopped in March 2020 and not re-started, follow up appointments being cancelled and then lost in the system and general delays in diagnosis and treatment because patients could not get to see a GP, or could not be referred for the normal diagnostic tests.

It remains to be seen how the courts will deal with any such cases should they get all the way to trial, but it is perhaps safe to say that the fall out from the pandemic and problems surrounding diagnosis and treatment will continue within litigation for several years to come.

[1] Quoted in “Surgeons fear wave of lawsuits over delays to cancer treatment”, the Guardian online, 7 March 2021.