Breast Cancer and Misdiagnosis

Last months news headlines have included the shocking and worrying story that up to seventeen women were told that they could face a significant risk of dying from breast cancer after being informed that the radiologist who screened them for the disease had wrongly given them the all clear.

In these cases the radiologists reports had not been checked by another colleague as the hospital he worked for employed just one radiologist which conversely may raise other issues in itself (there have been calls on the government to ensure that all breast screenings are double checked as well as concerns raised over staffing levels in hospitals).

It has been reported that the delay caused by the misdiagnosis may have ‘significantly altered’ the women’s chances of dying from breast cancer.

The doctor involved was initially suspended and has since been charged.

So what of the women involved? Apart from the fact that their lives have undoubtedly been shattered by this news, what recourse is available to them? Surely even amid calls of a compensation culture gone mad there is no one who would doubt that these women are deserving of some remedy?

Course of Action
The usual way to proceed in cases like this is to sue the NHS Trust, that is the hospital where the women were misdiagnosed and claim that the trust is vicariously liable for the actions of the medical professional involved, in this case, the radiologist. Complaints against a doctor can also be made via the NHS complaint procedure within 6 months of the matter complained of although it is important to note that such a complaint cannot be made whilst litigation is being intimated and/or to the General Medical Council. This may lead to a formal apology and sometimes the doctor involved being struck off or suspended however, sometimes even this is not enough.

As with all cases of negligence, the onus will be on the claimant to prove (on a balance of probabilities) that they were owed a duty of care, that this was breached and that this caused them loss. Interestingly, it is often this last element of loss which proves the most difficult for a claimant in a medical negligence matter to prove.

Duty
It is a well-established principle of law that a doctor owes their patients a duty to take reasonable care for the safety and well being of their patients. In the example above, it is a given that the radiologist owed the women a duty of care.

Breach
A special standard of care applies to Defendant’s who claim to have a particular professional or otherwise unique skill. The seminal case in this area was the case of Bowlam v Frien Hospital Management Committee

This case established two main principles:

Where a person purports to have a special skill then they will be judged against the standard of another reasonable person who purports to have the same skill. Thus a radiologist will be just against the standard of another reasonable radiologist.
If the actions of the person who claims to have a particular skill are supported by a responsible body of professional opinion then they will not be considered to have breached the standard of care. This is often referred to as the 10% rule where if 10% of radiologists would for example, have diagnosed the women using the same methods then the doctor would not have breached the standard of care – although there is no real issue of this in the above example.
The professional standard of care is objective in that the same standard will therefore be required of all professionals who purport to have a particular skill.

The courts have also held that just because a doctor or other professional had acted in accordance with common practice does not necessarily mean that this is conclusive evidence that the standard of care has been reached because the common practice may in itself be negligent (this principal is prevalent throughout all areas involving negligent practice).

One practical difficulty that a claimant may face at this stage is that the NHS trust may not admit liability. If there is no admission of liability then a claimant may not be able to afford to investigate the claim and an insurance company may not be willing to underwrite the risk of taking on such a complex and expensive case. It is therefore important to obtain practical and specialist advice from a personal injury lawyer and certainly not to turn to a claims management company who will have little legal knowledge and even less medical knowledge or understanding of how this area of law works.

Loss
The final hurdle for the claimant to overcome is that the defendant’s actions have caused them some kind of loss. In order to prove this, they must establish that the defendant’s actions were the legal cause of their loss. As stated above, in medical negligence cases, this can often be the hardest element of negligence to establish.

There are several legal tests which may be applied. The first being the ‘but for’ test, that is, can it be said that ‘but for’ the defendant’s actions the claimant would not have suffered any loss? The harsh reality of many medical negligence cases is that it may be difficult to prove that but for the defendant’s actions, the person would have been treated successfully and that their chances of recovery would be better.

For example, if a doctor misdiagnoses and illness or fails to spot something is wrong with a patient, then they may be in breach of their duty of care to the patient. However, if the patient would have died anyway then the doctor’s breach would not have caused their loss. So in the example being used here, if the women’s chances of death would have been the same regardless of whether or not the radiologist would have diagnosed them at the time properly, then the elements of negligence would not be established.

In the example we are using it has been reported that the doctors misdiagnosis may have ‘significantly increased’ the women’s chances of death and so it seems, he has caused them loss in that he has increased their levels of illness, possible caused them to lose a breast which may have been avoidable if the disease had been caught early and not been allowed to spread and perhaps has lead to an earlier death than they may have had if he had not misdiagnosed them.

Summary

As with all negligence cases, the onus will be on the claimant to establish that they were owed a duty of care and that this was breached causing loss. As the discussion above shows, in clinical negligence matters the element of loss may be difficult to prove.



[1957] 1 W.L.R 582

Ibid

Barnett v Chelsea and Kensington Hospital Management Committee [1942] AC 691