Injured People

My Cancer Diagnosis was Delayed, Can I Sue?

Adelaide personal injury lawyer Mal Byrne writes about what compensation entitlements you may have after a delayed cancer diagnosis.

Adelaide personal injury lawyer Mal Byrne writes about what compensation entitlements you may have after a delayed cancer diagnosis.

Doctors tell us regularly that early detection is the key to getting the best outcome for cancer patients, and the earlier the better!  So if a patient discovers that their cancer could have been diagnosed earlier but for the negligence of a doctor or hospital, can he or she automatically sue?

One of the common misunderstandings of patients who are victims of medical negligence is that they only have to establish negligence on behalf of the doctor or hospital to claim compensation.  That is not the case.  In many cases where negligence occurs, even gross negligence, doctors escape liability because the patient makes a rapid recovery and suffers no long term consequence as a result of the negligence concerned.

Where that occurs, the patient will not get compensation.  In order to get compensation, the patient must not only show that the doctor was negligent, but that the medical outcome would have been substantially different if the negligence had not occurred.  For example, during an operation, a doctor might negligently damage a blood vessel and cause severe bleeding leading the patient to go into cardiac arrest, but if the doctor manages to control the bleeding and the patient’s vital signs return to normal and the patient has no ongoing adverse medical consequence as a result, the patient will not be able to sue.  On the other hand, if the doctor was not able to control the bleeding and the patient lapses into a coma and requires long term care, the patient will potentially have a claim.

When a patient is diagnosed with cancer, the treating surgeon and/or oncologist will set out options which may include surgical removal of a tumour or tumours, followed up by adjuvant therapy such as chemotherapy and radiotherapy.  The dose and duration of chemotherapy and radiotherapy will vary according to the patient’s individual circumstances.  Some tumours can be surgically removed but sometimes no treatment can be offered other than palliative care.  In most cancers, there are a myriad of studies looking at survival rates in patients.  The standard measurement used is the mean five year survival rate.  Also, cancers are staged according to their severity starting from Stage 1 through to Stage 4 depending on the extent of the progression of the disease.  The earlier the stage of the cancer when it is detected, the better the five year survival rate. As Christopher Hitchens said famously, “there is no Stage 5”.

The High Court decision of Tabet v Gett made it clear that a percentage chance of a possible better outcome in and of itself is not enough to obtain compensation where medical negligence occurs.  In a delayed diagnosis case, the patient needs to show a substantial difference in terms of the treatment that would have been received and the outcome if the condition had been diagnosed earlier.  In my view, in the case of cancer, that will mean that the patient will probably have to show that the cancer would have been at a different stage if diagnosed earlier and/or that the treatment regime would have been substantially different. The examples where I think that a patient would be able to sue if the cancer had been diagnosed earlier would be for example if a tumour could have been surgically removed if diagnosed earlier and cannot be now, or where a tumour has metastasised and spread when diagnosed but would not have metastasised if diagnosed earlier, where chemotherapy is necessary now that would not have been necessary if earlier and so on.

The other important thing to remember is that the compensation available to a patient with a delayed cancer diagnosis will be limited to the pain and suffering, economic loss, treatment and care costs attributable to the delay only, not the total loss attributable to the cancer.

However, the law in this area is still developing and is very complex. Each case will also largely depend on individual circumstances, so if you have had a cancer related claim arising from misdiagnosis, please seek legal advice. The medical knowledge in cancer is always advancing and the law does not always keep up with the science.

For further information or assistance contact your nearest TGB location