Cancer misdiagnosis compensation claims
This article sets out everything you must know about making a cancer misdiagnosis compensation claim.
According to the latest available data from the Office for National Statistics (ONS) there were 421,912 new cases of malignant cancers diagnosed in 2015. Almost half of these were skin, breast or prostate cancers.
Rates of cancer diagnosis have increased by 12% since the 1990s.
It is important that cancers are detected as early and as accurately as possible to give patients the best chance of recovery. If a cancer is misdiagnosed it may result in wrong or delayed treatment, with potentially severe consequences.
Only a quarter of cases are diagnosed at the earliest stage, Stage 1.
Many illnesses present with similar clinical features to cancer in the early stages, and it may be difficult to determine the cause of a patient's symptoms.
Medical professionals should use differential diagnostic procedures to identify the patient's condition and eliminate potentially life-threatening conditions.
A medical professional, such as a GP, may fail to recognise that his or her patient's symptoms potentially indicate that cancer is a possible diagnosis. The GP may fail to carry out appropriate tests or consult with specialists to investigate the condition further. As a result, they may mistakenly provide an incorrect diagnosis for the patient's illness. This is referred to as clinical negligence.
Even where tests have been carried out, faulty lab equipment or human error may result in inaccurate reports from the laboratory or clinic.
A cancer misdiagnosis may lead to incorrect or delayed treatment, and the subsequent and avoidable worsening of the patient's condition.
In extreme case, the error may be discovered too late to offer effective treatment.
I have a strong claim - why won't a solicitor take it on?
A misdiagnosis alone may not be sufficient to bring a claim for medical negligence. To establish a claim it is necessary to prove that medical professionals failed to provide the correct treatment competently and that their actions fell short of those expected from a reasonably-competent professional.
Factors that may be considered include:
- Whether the GP referred the patient to a specialist
- Whether investigations such as a biopsy were performed
- Whether MRI or CT scans were carried out
- Whether the diagnostic laboratory or clinic failed in its duty of care to deliver accurate results
It must be proved that the misdiagnosis caused harm to the patient or worsened their condition.
In the event that a misdiagnosis is spotted after only a relatively short period, and so the cancer has not spread or developed to a later stage, it may not be possible to claim compensation. This will be decided based on the medical evidence and facts of the case.
All relevant evidence of the misdiagnosis must be kept. This includes any records or statements made by medical professionals and any prescriptions issued.
Notes of any financial losses, such as travelling costs and loss of earnings if unable to work, should be documented as they will form the basis of any claim for "special damages".
Most personal injury claims must be made within 3 years of the injury occurring or of the effects of the injury becoming apparent. In the case of cancer it may be some time after the original misdiagnosis was made before the patient experiences the negative impact of that medical error.
As a result, the 3-year time limit generally starts from the date the patient learned that they were previously misdiagnosed.
Claimants under the age of 18 have 3 years from their 18th birthday (i.e. until they are 21 years old) to bring a claim.
Claims can be made for costs incurred as a result of the misdiagnosis. As well as loss of income and travelling expenses to attend appointments, the purchase of special equipment for the home or personal care may be claimed.
The pain and suffering sustained as a result of the delayed or misdiagnosis will be assessed and a sum for "general damages" is awarded to compensate the claimant.
It is also possible for dependants to bring a claim in respect of a deceased family member.
In rare cases, patients have been diagnosed as having cancer, when in fact they did not.
Wrongful diagnosis can result in serious emotional and physical consequences that persist long after the error has been identified.
The perception of cancer as particularly harmful can amplify the emotional fallout of a diagnosis. A patient may be able to claim compensation for psychological trauma, stress and depression sustained as a result of the medical error.
Treatments for cancer including chemotherapy and radiotherapy can carry a range of risks and come with significant side-effects. Unnecessary exposure can permanently affect a patient's health and will mean that the correct treatment for the patient's true illness or condition is delayed.
Surgery also carries risks, and can result in irreversible, long-term physical and psychological harm in the case of the removal of breasts or sections of kidney, lung or bowel tissue.
The amount of compensation you will receive depends on a number of factors. Our personal injury compensation calculator provides an accurate estimate of your likely compensation.
Personal injury solicitors now work on a No Win, No Fee basis.
No Win, No Fee means that if your claim is not successful, you will not need to pay any legal fees.
If you do win your case, a success fee will be deducted from the compensation award and paid to your solicitor.
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About the author
Paul is a member of the Law Society Personal Injury Panel, a member of the Association of Personal Injury Lawyers, and has served as a Deputy District Judge, giving him a uniquely broad understanding of the claims process.
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