Misdiagnosed cancer claims

The standard of care in the UK is generally high, but if there has been a misdiagnoses of cancer or delay in diagnosis or treatment, it can be devastating for you and your family.

Patients with cancer may be unable to work for long periods of time and may require extensive care or long periods of time in hospital away from their family. This can cause financial stress, which can then compound psychological suffering. Compensation received from a claim can help alleviate this.

Where possible, we will also seek to obtain early interim payments of compensation so that you are able to take the steps you need to ensure you receive appropriate care. This can be additional physiotherapy, therapy sessions to help with your mental well-being, or adjustments needed to keep you comfortable at home.

Advances in medical science mean many cancers are now treatable, and an accurate diagnosis has a major impact on a patient's recovery. However, early detection and the correct course of treatment can have a serious bearing on chances of survival. Therefore misdiagnosis, late diagnosis or the incorrect treatment can impact whether a patient's condition will worsen and, potentially, become incurable.

If you experienced a delay in treatment or a cancer misdiagnosis that led to an advanced cancer stage, that if treated correctly at the time of presenting would not have occurred, then we may be able to help you get the compensation you need.

Similarly, if you have experienced cancer misdiagnosis, including being told you were terminally ill when in fact that was not the case, or you underwent an unnecessary treatment, you may be eligible to make claim.

Like all medical negligence claims, cancer misdiagnosis claims are complex and time-consuming, which is why it's important to choose lawyers who are able to understand what you're going through and have the knowledge and expertise to help best present your case. That is what we do here at Shoosmiths.

We're proud to not only stand alongside you but stand up for you during these traumatic times. Not only providing legal counsel, but someone you can talk to. If you're unsure whether you have the grounds to make a claim, you can call us on 0800 231 1564 or send a message for us to set up a phone call with you.

The impact of COVID-19 on cancer misdiagnosis claims

It's no secret that the NHS has been stretched beyond capacity during the ongoing COVID-19 crisis, and this will continue to have a knock-on effect on the diagnosis of other illnesses and ailments.

While much of the focus has been upon the difficulties cancer patients have had in accessing treatment, there has also been some discussion of missed new diagnoses. This could be because of suspended screening programmes, difficulties in getting appointments with clinicians, as well as a missed diagnosis because of confusion between the presented symptoms and symptoms of COVID-19. In particular, we're seeing that more lung cancer diagnoses may have been missed because of this confusion.

The Lancet Oncology journal recently predicted that delays in treatment since March 2020 could lead to 3,500 avoidable deaths over the next five years. Despite the National Institute for Health and Care Excellence (NICE) providing guidance about the prioritisation of patients for radiotherapy, it was up to individual NHS Trusts to interpret this guidance.

As a result of this, it will be difficult for any medical negligence claim brought in relation to events which have occurred during the pandemic to identify and prove a definitive negligent cause. Disentangling non-negligent delay (inevitable and justifiable as a result of COVID-19) and negligent delay (arising from sub-standard care) will be a challenge, and will make all claims, including cancer misdiagnosis claims, during this period even more complex. That is why it's important you choose lawyers who have the expertise to deal with such difficult cases.

The most common mistakes which can lead to cancer misdiagnosis claims fall into two main categories:

• Delays in diagnosis: where a GP or medical professional has failed to react to symptoms presented, not listened to the patients concerns or misread test results, which led to a delay in treatment that has affected the seriousness of the cancer.
• Misdiagnosis: where a patient has been misdiagnosed with cancer, misdiagnosed with a less serious condition, or has had unnecessary treatment or surgery as a result of the misdiagnosis

We know that cancer is one of the most common illnesses in the UK, with one in two people in the UK born after 1960 expected to be diagnosed with some form of cancer during their lifetime.

It is a disease caused by a change in the body's cells, whereby the normal cells grow in an uncontrolled way and create a tumour. If left untreated, the tumour can cause problems including:

• Spreading into nearby normal tissues
• Causing pressure on other body structures
• Spreading to other parts of the body through the lymphatic system or bloodstream

The term 'cancer' encompasses more than 200 different diseases and affects nearly every part of the body. If left untreated or treatment is delayed, they are all potentially life-threatening.

The major types of cancer are carcinomas, sarcomas, melanomas, lymphomas and leukaemias. Carcinomas are the most commonly diagnosed cancers, and they originate in the skin, lungs, breasts, pancreas and other organs and glands.

Lymphomas are cancers of lymphocytes and leukaemia is cancer of the blood cells. It does not usually form solid tumours.

Sarcomas arise in bone, muscle, fat, blood vessels, cartilage or other soft or connective tissues of the body. They are relatively uncommon, while melanomas are cancers that arise in the cells that make the pigment in skin, commonly known as skin cancer.

If you or a loved one have been diagnosed with cancer, you will be aware of the stage and grade of the cancer. The stage describes the size of a tumour and how far it has spread from where it originated, while the grade describes the appearance of the cancerous cells.

Staging and grading the cancer help the doctors to determine its size, whether it has spread and the best treatment options.

Cancer stages

Different types of staging systems are used for different types of cancer, but the common method of staging is categorised 0 – IV.

• Stage 0 - indicates that the cancer is where it started (in situ) and hasn't spread
• Stage I – the cancer is small and hasn't spread anywhere else
• Stage II – the cancer has grown, but hasn't spread
• Stage III – the cancer is larger and may have spread to the surrounding tissues and/or the lymph nodes (part of the lymphatic system)
• Stage IV – the cancer has spread from where it started to at least one other body organ; also known as "secondary" or "metastatic" cancer

The stage and grade of your cancer will significantly impact your case. If your cancer has progressed to a later stage and grade as a result of your misdiagnosis or delay in treatment, and we are able to prove that this has impacted your condition, you may be able to make a misdiagnosed cancer claim.

However, it makes no difference what type of cancer you have, since all forms are considered when it comes to compensation claims.

At Shoosmiths we have the expertise and experience in dealing with a whole host of cancer cases where treatment has been delayed by a minimum of 8 – 12 months and this has led to a serious progression in the cancer that, if treated in time, would not have occurred, meaning that in all the cancer misdiagnosis claims we take on, we must be able to prove causation.

Regardless of what type of cancer you have, if medical professionals have been negligent in misdiagnosing cancer or delaying diagnosis, you may be able to make a claim.

While we know no amount of compensation will ever rectify what has happened, it can ease some of the financial stress you may be under as a result of your treatment, as well as help with any future care you may need.

The most common types of cancer cases we deal with include:

• Bowel cancer negligence claims
• Breast cancer negligence claims
• Cervical cancer negligence claims
• Lung cancer negligence claims
• Lymphoma cancer negligence claims
• Melanoma (skin cancer) negligence claims
• Prostate cancer claims
• Pancreatic cancer claims

Other types of cancer claims may relate to issues of medication, chemotherapy or incorrect or inappropriate treatment. This is especially true if you were not given sufficient information and warnings about the risks inherent in a therapy and therefore could not give genuinely informed consent to the treatment.

Equally, a misdiagnosis of cancer can mean that people endure unnecessary procedures such as a mastectomy and develop severe psychological problems because they believe they are terminally ill.

In addition to cancer claims caused as a result of medical negligence, we can also assist in personal injury claims that resulted in a cancer diagnosis. We know that some cancers are caused by exposure to dangerous substances like asbestos in the workplace. However, diagnosis is much more difficult since the symptoms of these asbestos-related illnesses may not become apparent until many decades after the initial exposure.

If you think your cancer was caused by exposure to a dangerous substance in your workplace Shoosmiths industrial disease lawyers can help you with a claim.

Bringing a medical negligence claim is complex and demanding and cancer claims are no exception. The first thing to do is to contact a law firm which specialises in these sorts of cases.

Your case will then be assessed by a specialist cancer misdiagnosis solicitor, who will consider if there are sufficient prospects of success. Once your case has been taken on, your legal team will need to obtain a complete set of your medical records, and these will be reviewed by an impartial medical professional, as well as your lawyer.

To prove your case, it is necessary to prove two tests: showing that treatment, or lack of treatment provided, was unreasonable, and that harm was caused as a result of this breach of duty. To help us establish these grounds, independent medical experts will be instructed.

You may also need to be examined by a medical expert so they can comment on how likely you are to recover in the future. This information is crucial when valuing a claim. 

Once we have received the expert evidence, and issues of breach and causation have been established, we can start to value your claim. We will be in a position to present a claim to the defendant(s). 

The defendant(s) will then have four months to investigate, obtain their own reports, and to confirm whether the claim will be contested or admitted. If a settlement cannot be reached or the defendant(s) deny any wrongdoing, then it might be necessary to take your claim to court.  

We know how confusing and distressing the whole process can be, so we want to reassure you that we'll be with you every step of the way, fighting your corner.

If you would like additional information, national charities such as Macmillan Cancer Support can also help with information, grants and more practical assistance. And a comprehensive list of support organisations for different types of cancer is given on the website of Oncology Systems Limited (OSL), a manufacturer of radiology equipment used in the NHS.

The Action against Medical Accidents (AvMA) website has a useful tool that will allow you to search for solicitors checked and accredited by this respected independent national charity

In order to present a case, we must first ascertain who to bring a claim against. If there are a number of failings, then there can be multiple defendants. If you presented your symptoms to a GP and they failed to refer you to a specialist consultant then the claim will be brought against the GP. If tests were misread or the wrong treatment was given because of the test results, the claim would be brought against the hospital Trust. If on the advice of a surgeon acting in a private capacity, you underwent unnecessary surgery, the claim would be brought against the surgeon if he has valid insurance or the funds to settle the claim.

If you're unsure who to bring a claim against, we're here to help gather the facts and uncover where a breach in duty of care occurred. You can call us on 0808 231 1564.

Claims should not affect your treatment. However, if you have any concerns or you no longer feel comfortable or confident being treated where you are, a complaint should be raised at your GP practice and/or you should contact the Primary Care Trust.

Often cancer misdiagnosis claims are complex, especially if there are a number of defendants involved. These cases may be robustly defended, and resolution will depend on how serious your injuries are and whether/how quickly the other party admits liability.

To prove your claim, we will need to obtain evidence from independent medical experts to establish whether there were any negligent failures in the care you received, for example that there was a negligent delay in performing investigations and that if you had received the appropriate care and treatment the outcome would have been different. The time taken to obtain this evidence will depend on the complexity of your claim.

In cases of cancers such as mesothelioma contracted at work, fast track procedures are available since the life expectancy of victims of this disease is usually very short following a diagnosis and the commencement of legal action.

Sometimes the other side will dispute our evidence and our valuation so we need to enter negotiations to reach a satisfactory settlement and these talks can take time.

But please rest assured that Shoosmiths will always aim to resolve your case without delay, and the time it takes will help to ensure we achieve the best possible outcome for you.

Thanks to our knowledge and expertise, it is very rare that cancer misdiagnosis claims end up in court and we can typically reach a voluntary settlement out of court. However, sometimes court may be the best or only option to help us secure suitable compensation for you.

Even where we do have to begin court proceedings on your behalf, most claims can still be resolved with an amicable settlement out of court. As a result, very few claimants will ever need to attend a court hearing to claim cancer misdiagnosis compensation.

We understand that should your case go to court this can create additional anxiety and stress, but rest assured we will help you through the process and will be with you every step of the way.

It is possible to make a claim on behalf of someone else if:  

• You're the parent/guardian of a child under the age of 18
• A loved one does not have capacity to pursue the claim themselves because of the illness
• A family member has passed away from their illness

If you're unsure about whether or not you can claim on behalf of a loved one, you can call us for a no obligation chat on 0808 231 1564.  

Should the claimant die during the process, the estate or the dependants of the deceased will take on the claim. We can help you make a claim if you’re the parent of a child under 18 or if you were financially dependent on the individual who lost their life.

The amount awarded is dependent on who the person was. For example, they could have been the main income provider, or they could have been the predominant caregiver. We can also help you access a statutory bereavement award which is payable when a wrongful death has occurred. This is available if you're the spouse, civil partner or parent (if under 18) of the person who died.

A GP negligence claim is given the same time restrictions as any other medical negligence claim - and you will usually have three years from the date that your trauma was linked to a medical error.  

However, there are certain circumstances when the three-year time limit doesn't apply: 

• You’re acting on behalf of someone under the age of 18. In child injury claims, the three year time limit starts to run from the child’s 18th birthday.
• You’re acting on behalf of someone who lacks the capacity to. The time limit only starts when they regain that capacity. If it’s permanent, however, no limit will apply.  

Here at Shoosmiths we are passionate about what we do and want to help as many vulnerable people as possible by being their voice when they need it the most. It's why we take most cases on a No Win No Fee basis.

In the event of a successful claim, our lawyers charge their full costs and any shortfall that cannot be recovered from the defendant, including counsel’s costs. However, it is advisable to take out special ‘After the Event’ insurance to protect you from having to pay any legal expenses in the event your claim is unsuccessful.

Any insurance premium (although part may be recoverable) is deducted from the total compensation award for a successful claim. We aim to keep this sum as low as possible to minimise any deductions from your compensation.

Cancer misdiagnosis compensation amounts vary on a case-to-case basis, but can include:

• General damages: for disability, pain, and suffering experienced
• Special damages: for every expense incurred directly due to the misdiagnosis – income loss, for example, can be claimed back
• Medical expenses: for expenses such as equipment, medicine or visits to private doctors
• Travel expenses: for travel between various entities as required by your course of treatment or misdiagnosis

It is important to remember that the amount awarded is to reflect the loss and/or damage you have encountered, and to help put you in the same financial position that you would have been in prior to your treatment.