medical negligence

Delayed diagnosis and misdiagnosis of cancer during COVID-19: are there grounds for a medical negligence claim?

In March 2020 the NHS turned the majority of its resources towards dealing with the coronavirus pandemic. For some, this effort was life-saving. For others, this shift meant that life-saving opportunities for the early detection and treatment of cancer were missed.

With resources diverted, routine screening programmes for cancer were paused. Two-week wait referrals dropped by up to 80% and have still not returned to pre-pandemic levels. In England alone, it is estimated that there are currently over 40,000 overlooked cancer diagnoses. 

Some of these missed diagnoses will be due to patients’ reluctance to contact their GP with more minor symptoms at a time when the NHS has been placed under huge pressure. 

However, you may have sought medical advice with cancer symptoms and a decision was made not to investigate, or you have found yourself waiting too long for investigative tests,  or you didn’t receive an invitation to routine screening. As a result, your outcome may have been compromised.

If your symptoms were not acted upon when they should have been, or priority for referral was wrongly assessed, then you should have the freedom to choose whether to investigate a claim. Tees’ Top Tier Legal 500 medical negligence team specialises in claims for delayed diagnosis and negligent treatment of cancer. 

How were cancer cases prioritised during lockdown?

Throughout lockdown, NICE issued guidelines to help doctors assess the prioritisation of cancer patients for surgery, radiotherapy and other treatments. Priority was generally to be given to those who would experience significant negative outcomes from delay and to patients for whom treatment had the highest chances of success.

Alongside this, it was suggested that doctors should consider and discuss with patients the increased risk of becoming seriously unwell with Coronavirus as a result of some treatments. 

Where these guidelines were followed, some delays to treatment are likely to be deemed reasonable and therefore unlikely to be negligent. However, some prominent oncologists have already suggested that the interpretation of this guidance has been wrong, as evidenced by the radiotherapy machines - which should have been put to use saving lives - ‘lying idle’.

NHS England wrote to all local NHS Trusts on 31st July 2020, setting out plans to restore all cancer services, fully restarting all cancer screening programmes. Macmillan.org.uk published a guide – Cancer and coronavirus: know your rights, which included the underlying principles for NHS Trusts around cancer services and treatments.

Will the delay to my cancer treatment be deemed negligent?

In some cases, it may be hard to prove that a delay to a patient’s treatment was unreasonable against the backdrop of such unprecedented circumstances as the Covid-19 pandemic. Assessment may involve comparing your priority level to that of other people who did manage to get treatment, considering to what extent the relevant guidelines were followed, and whether resources were allocated appropriately. However, where a delay is due to clear miscategorising of a patient under NICE guidelines, a negligence claim is more likely to be successful.

How is the standard of care likely to be modified in the light of Covid for delays in cancer treatment?

To bring a claim in negligence, it must be proven that the standard of care provided fell below what is reasonable. Bearing this in mind, it should be noted that some delay to diagnosis or treatment is likely to be considered justifiable in the light of the pandemic. 

In some cases, there may be circumstances that make the delay unacceptable so there may be grounds for bringing a claim for negligence.

However, even if negligence is found, the challenge will be to draw a distinction between harm caused by non-negligent delay and that caused by negligence. It will only be possible to seek compensation for the harm caused by negligent delay.

Medical negligence law recognises this difficulty. A solution is offered by the concept of ‘material contribution’. This concept states that causation – that is to say, the harm that was actually caused by negligence - may be found if:

  • it is impossible to prove that ‘but for’ the negligence the harm wouldn’t have been caused; and
  • it is clear that the defendant acted negligently and exposed the claimant to an unreasonable risk of injury

Our medical negligence solicitors will therefore be looking closely at the application of this legal principle when assessing possible claims for negligence in delayed cancer diagnoses.

How could cancer cases have been misdiagnosed during Covid?

A new continuous cough can be the first sign of lung cancer. Before the pandemic, the advice for anyone suffering from this type of cough was to speak to your GP so that potential lung cancer could be investigated or ruled out. 

From March 2020, anyone with a new continuous cough was advised to stay home and not attend their GP surgery.

In some areas, two-week wait referrals for lung cancer dropped by as much as 75%, meaning that thousands of cases potentially went undiagnosed during this time.

It is not just lung cancer that may be confused with coronavirus. There are concerns that in some cases brain cancer may have been misdiagnosed when patients reported loss of sense of smell or taste. 

In addition, GPs’ ability to pick up on other symptoms that may indicate cancer has been reduced by the increased use of telephone appointments. In his speech delivered on 30 July 2020, Matt Hancock advocated that going forward, “all consultations should be teleconsultations unless there’s a compelling clinical reason not to” however on 13 May 2021 The Telegraph reported a climbdown on this stance. The tragic case of Joy Stokes, also reported recently in the Telegraph and other stories such as that of Julie Forward, whose cancer was misdiagnosed as indigestion and resulted in an 11 week fight for life in hospital, highlights the very real risks posed by a move to “total triage” via telephone appointment, a system which was due to come into force under new NHS guidance that has now been scrapped.

Indeed, GPs have a duty to consider all relevant diagnoses and should ask patients about other symptoms. They should also follow this up with an in-person appointment where appropriate. 

Symptoms indicating lung cancer rather than coronavirus include:

  • fatigue lasting more than 4 weeks  
  • persistent chest infection 
  • chest pain 
  • weight loss and Appetite loss 
  • finger clubbing (swelling)

Where any of these symptoms are present and a coronavirus test comes back negative, patients should be referred for further investigation. Where GPs have failed to follow this protocol and did not refer their patients for further investigation, there may be a case for medical negligence if this has resulted in an adverse outcome.

We’re here to help

If you have suffered through misdiagnosis, or experienced delays to your diagnosis or treatment for cancer and you are concerned that this may be due to negligence, talk to our specialists. 

We will investigate your claim, seeking the advice of medical experts where necessary, and advise on whether we think you have a case. There are various funding options available for medical negligence claims, although most are covered under a “No Win, No Fee” agreement. We offer a free assessment of your case with a specialist medical negligence solicitor, and will explain the funding options before you start. Call us today.

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