Delays in rogue surgeon negligence cases

A number of breast cancer patients of a surgeon suspended from the General Medical Council are experiencing lengthy delays in compensation payments.

The doctor's suspension came in 2012 after he was accused of performing "cleavage-sparing mastectomies", a procedure that is not formally recognised and may leave patients at greater risk of the cancer returning.

What is a cleavage-sparing mastectomy?

A cleavage-sparing mastectomy involves the surgeon leaving a significant proportion of tissue behind in the inner aspect of the breast, in order to retain the patient's breast cleavage - even in women not undergoing immediate reconstruction.

According to reports, the procedure is in breach of national guidelines, which state that leaving tissue after a mastectomy increases the chances of cancer recurring - especially if the remaining breast tissue does not receive radiotherapy.

The technique is different to the widely-used skin sparing mastectomy, where the surgeon leaves behind an envelope of skin to improve the appearance of breast reconstruction.

Is the surgeon's conduct negligent?

This doctor may have breached his duty of care to his patients, potentially giving rise to surgical negligence claims. The 'pioneering' treatment fell below the standard expected of a competent healthcare professional.

Investigations were carried out as early as 2003 when colleagues became concerned that he was not removing enough tissue during mastectomies. Although a number of recommendations were made these appear not to have been acted upon. Further fears were raised in 2007, but despite the doctor being told to stop performing cleavage-sparing operations he continued until as late as 2011.

These actions may have caused his patients avoidable harm. By leaving tissue in place they face the prospect of the cancer returning, or of secondary cancers developing. This may not have been the case had all the tissue been removed.

Patients have had to undergo further surgery to remove the excess breast tissue and concerns about their prognosis has led to emotional and psychological distress.

Why has compensation not yet been agreed?

The doctor operated on his patients at several NHS and two private hospitals.

Those patients treated at the NHS hospitals have already had their claims settled, but some of the private patients are still waiting.

This is because the NHS has financial responsibility for negligence attributable to medical staff employed at the hospitals. Most doctors employed by the NHS are covered for the duties listed in their contract by the Hospital and Community Health Services indemnity scheme (often called NHS or Crown Indemnity). 

Doctors undertaking private work or work in independent hospitals are responsible for arranging their own liability insurance with a medical defence organisation (MDO).

However, although the doctor had taken out indemnity insurance with the Medical Defence Union (MDU), the insurer is disputing the claims because some of the procedures he carried out may be illegal and therefore not included in his cover.

They stated that the cover is discretionary and may legitimately be withdrawn if a surgeon's practice falls outside of the insurance terms.

What will happen now?

The organisation running the private hospitals where the doctor carried out the operations has issued an unreserved apology to his patients.

The complexities in the legal process are compounded because patients had treatment privately, or through the NHS or a mixture of both. It means that some Claimants may face further delays in receiving compensation.