NHS Trust settle out of court for delay in breast cancer diagnosis

Dear all,

I’ve been away from the site for a few weeks but I thought I would update you on what has been going on.

I have recently settled out of court with NHS for the delay I suffered in the diagnosis of breast cancer.

This has been a long haul - much longer than I expected it to be.

Back in April 2002 I went to a GP at my local health centre having found a breast lump. I was told by the GP that it was merely a milk gland and went away reassured. The lump didn’t go away and I started to feel nervous about it and so I returned to the local health centre in September 2002 and saw a different GP. She could feel the lump and referred me to non-urgently to Stirling Royal Infirmary’s breast clinic. At my appointment in October 2002 I saw a senior house officer who gave me a clinical examination and told me I had two fibroadenomas. He did reluctantly, at my insistance, allow me to have a mammogram but nothing showed up - not surprising in a younger woman with dense breast tissue. Despite clearly detecting two lumps and despite all the guidelines the senior house officer failed to carry out all three parts of the triple assessment which consists of firstly clinical examination, secondly imagery (mammography or ultrasound) and thirdly histology (fine needle aspiration or biopsy). I went away from that appointment after being told that the lumps were benign. It wasn’t until a follow-up appointment in April 2003 that I saw a consultant who did a fine needle aspiration and told me that both lumps were in fact malignant tumours.

Between April 2003 and January 2004 I had treatment for breast cancer - a mastectomy, chemotherapy, radiotherapy and hormone treatment. I also wrote to Forth Valley NHS Trust asking them why there had been a delay in diagnosis and received a vague letter which alerted me to the fact that they were trying to cover up their mistakes. I had a couple of very tough meetings with Forth Valley representatives where they clearly were trying to protect themselves. I then informed them that I was going to raise an action against them to claim damages for negligence.

In March 2004 I went to a highly recommended solicitor and started the ball rolling. My solicitor engaged on my behalf experts who would examine my case notes and give opinions on the events. The experts found the first GP negligent in neither referring me to a breast clinic nor reviewing me at a later date. They also found the senior house officer negligent because he carried out only the first two parts of the triple assessment and not the third - a fine needle aspiration or biopsy. In addition it was noted that on the first visit to the Breast Clinic I should have seen a consultant and not a senior house officer. All this meant that I could show that negligence had taken place.

Negligence alone does not equal damages. It has to be shown that harm has occurred because of the resultant delay in diagnosis. My solicitor then engaged an expert pathologist and an expert psychiatrist. The pathologist looked at the slides taken from the tumours, both of which were grade 3, and made a calculation of what size and grade the tumours might have been if diagnosed six months and twelve months earlier. He found that the delay in diagnosis had increased the tumour size by approximately a factor of four, made no difference to grade of tumour, reduced my 10 year survival figures by about 25% with most of this reduction had taken place between October 2002 and April 2003. The psychiatrist confirmed psychological distress caused directly by the delay in diagnosis.

However, the English and Scottish legal systems use something called ‘the balance of probabilities’ when it comes to looking at medical negligence cases. The courts will only concede that medical harm has been caused a delay in diagnosis if the 10 year survival figure is less than 50% on actual diagnosis but would have been more than been more than 50% if the diagnosis had been made in a timely fashion. (Thus, if a woman’s 10 year survival figure falls from 100% to 51% or even 49% to 1% no damages claim can be made directly for the change in prognosis but if the figure falls from 51% to 49% then she can. Mad isn’t it?)

My two figures were both above 50% (which personally was lucky for me if you think about it). So I couldn’t make a claim for the change in prognosis but I could make a claim for psychological distress, loss of the opportunity to have an immediate breast reconstruction (I was advised against it because of the delay), loss of earnings while having a delayed breast reconstruction, and a marked change in future insurance premiums directly due to the delay in diagnosis. (If I’d needed a mastectomy rather than a lumpectomy or a different treatment regime due to the delay I would have been able to claim for this too, but in my case surgery and treatment would have been the same in April 2002 as in April 2003).

In theory I could have raised an action against the GP and the senior house officer but I was warned against this by my solicitor. The GP was employed by the NHS Primary Trust while the senior house officer was employed by the NHS Acute Trust. The two organisations could have created a stalemate by arguing about responsibility between themselves. Instead I was advised to only raise an action against the senior house officer and the Acute Trust because the second six months was when most of the tumour growth and resulting change in prognosis had occurred. This I duly did. I also mentioned in the action the consultant who knowingly allowed me to be seen on my first visit to the Breast Clinic by a junior colleague.

This action was raised in June 2005. It has taken until October 2007 to settle out of court. NHS Forth Valley never put in a defence and then the solicitors working on the behalf of the trust quibbled repeatedly about the amount of damages and my legal costs in a most disgraceful manner. There were phone calls unanswered and also a breakdown in communication between the Trust and solicitors representing them. In some ways this avoidable delay in settling the claim was the most distressing of all.

Eventually the chief executive of the Trust insisted that I got a percentage of money up front to go on holiday and then, when the trust’s solicitors quibbled again about the my legal costs and tried to get out of paying them in full, insisted that the whole thing was settled by the end of that particular day.

The amount of money I received at the end of the day wasn’t huge because the legal system does not compensate realistically for psychological distress. It was damages rather than compensation - medical cases are settled for a fraction of the amounts in libel cases. I may be the only person in the history of medical negligence cases to get my legal costs paid in full. Neither the Trust nor the doctors concerned have ever apologised; the most I have received was a very guarded expression of regret from the Trust. But it was a moral victory.

The settling of the action now allows me to do something very important. I can now investigate whether delays in diagnosis are common and, if so, do something to stop them. While in the middle of legal action I was advised not to go public. I am aware that other people have had delays. I’m also aware that others have tried, often unsuccessfully, using the complaints procedure, the ombudsman, and even the GMC to ensure that delays in diagnoses don’t happen to other people.

Was what happened to me to me is an example of an isolated case or is it the tip of an iceburg? I simply don’t know. What I need is information and evidence. If you have had a delay in diagnosis or know of someone who has had a delay in diagnosis then please, please, please look at the thread I have set up on ‘delays in diagnosis and the National Patients’ Safety Agency’. I’d also like to know if anyone has used the complaints procedure, the ombudsman or the GMC to raise complaints about a delay in diagnosis or if anyone is taking, or has taken, legal action.

With very best wishes,

Sue

Hi Sue

Really pleased to hear that you’ve got some compensation. (or ‘damages’)

You know all about my case. I was advised that I didnt have a legal case for compensation because without the negligence my 10 year survival stats were 42% at best (with the negligence 18%). My solicitor never told me I coudl try for psychological distress but I wouldn’t have risked it…couldn’t afford to take a case without insurance for the costs.

Good luck with your campaigning. I’m sure, sadly, that misdiagnosis probably happens more often than we care to think. As you say GP awareness and triple assessment aren’t rocket science…just good practice.

I did get fulsome apologies from both the Trust and the Doctor found ‘guilty’ of professional incompetence by the GMC. It seems you either get money or you get apologies…

Jane

Hi Jane,

I’ve sent you an email.

Apologies would have been worth a lot but it wasn’t going to happen - the trust was very defensive. The Trust did pay for me to have a delayed breast reconstruction privately at a time that suited me. I have to take that as an attempt at making things right.

Strangely enough I got on well with the Trust’s chief executive and just before everything was completed she said that she would ‘miss our little chats’ and I think she meant it.

I wouldn’t have dared to take the Trust on but for the fact that the case was pretty much water-tight. Damages for psychological distress are very minimal - £2-3K and you and I both know how insulting that sort of figure is considering what we’ve both been through. I did claim for loss of earnings but the larger amount was increased future insurance premiums.

Having done all this what it gives me is the chance to be listened to. No one can accuse me of being some hysterical woman who wants to blame someone for her imagined delay in diagnosis. I can make a difference because people will be more likely to take me seriously.

With very best wishes,

Sue

I

Hi Sue,

You come across as being very strong and brave to pursue this case. Especially as you were undergoing treatment.
Congratulations in perservering. I know that the outcome will not change anything for you but it may do for others.
I agree that an apology means more than compensation but I would hazard a guess that if the trust did that then they would be admitting liability.

I wish you well for your future health and ongoing campaign.

Kat x

Hi Sue,
It seems to me that your case got settled quite quickly. I raised a case against my local trust early in 2004 for negligence following a delay in diagnosis, and it is still not finally settled. Like you it should be settled out of court as the trust have admitted negligence but the lawyers are still arguing figures. I think the only winners are the lawyers!.
The one thing I really wanted out of all this was an apology which was supposed to be coming many months ago but I’m not going to hold my breath.
I suspect that there are many more cases of delayed diagnosis but that many people are put off taking action at a time when they need all their resources to fight this disease or just simply don’t know how to complain about their treatment.
Anyway, congratulations on your success.
Jakey

Hie

Its my first time ever on any kind of forum! I was diagnosed with stage iii breast cancer 6 weeks ago. I first noticed my lump over a year ago and it has taken them this long to give me a diagnoses. I can so relate to your story because it is so similar to mine. I first noticed the small lump in my breast after my 32nd birthday. I was referred to the breast unit where a consultant carried out an ultrasound and told me it was nothing, and they would follow me up in months time and they would remove the lump then. I was seen by a junior Dr in a pre assement clinic and my surgery was cancelled as my Hb was low. I developed another health problem which was not related to the breast cancer of which I attended my local hospital. I felt that the lump had gotten bigger after 2 months and was seen by an SHO who just felt my breast and told me I was too young to have breast cancer and it was nothing! I was so frustrated and when I mentioned to the medical Drs that I needed to be seen by a Breast Consultant they implied I was overreacting and it was actually medically a good thing that I had developed another lump because it meant that I was prone to cysts and It was nothing!

After 5 more months of noticing the changes in my breast and with no further follow up from the breast clinic, i broke down to a new medical consultant, who referred me to a different consultant. It was only then I had a mammogram and a needle aspirate. You can imagine the anger I felt/am feeling about all of this. I wrote a 6 paged letter of complaint to the hospital and have been informed that “they are investigating”.

I had a mastectomy 2 weeks ago, and will need chemo and radiotherapy. Tomorrow I have an appointment with the Drs to get all my results. I have no faith in my Drs and the reason I keeping telling myself to be strong is for my little boy who is four and all my family.

I am so hurt and upset and feel completely neglected, nobody has apologised or admitted that things should have been done sooner.

You have given me hope to pursue this.

Thank you

I keep meaning to report my GP to the GMC who wouldn’t do an urgent referral and ended up getting a family planning doctor to do it as she would only treat me for mastitis and kept saying bc didn’t present like this.
You have given me the courage to get a copy of my notes and will start the ball rolling. if you have any further ideas, could you contact me via bc.pals
Thanks
Kate

Hi Sue

Well done for persevering with your case.

We seem to have had fairly similar experiences.

My GP referred me to the hospital for investigation after an episode of nipple discharge, it was a non urgent referral and over the next 10 months I had a mammogram, ultra sound and finally an MRI scan. Following the MRI scan I had a brief appointment with a consultant surgeon who assured me there was nothing wrong, I just had lumpy breasts.

Fortunately I wasn’t satisfied and returned to my GP who reluctantly referred me back to the hospital, again a non urgent referral. 6 months later I was given a second ultra sound at which time I was told that a lump had been detected in the MRI scan and it had never been biopsied. I had a grade 2 invasive ductal carcinoma.

The hospital seemed to panic, I found out I had cancer from a message left on my voicemail! I had another MRI scan, 2 operations and a CT scan within weeks. I then changed hospitals.

I have followed the hospitals complaints procedure which is a waste of time, contacted my MP and the GMC. The finding of the GMC was that the consultant does not pose a risk, she was reprimanded. I appealed as she lied claiming that I “was reluctant to undergo further treatment” again the decision was that she doesn’t pose a risk. I have also contacted Power ICAS (Independent Complaints Advisory Service) who assisted with the hospital complaints procedure.

It does seem very wrong that it is so stressful and difficult to get a hospital to admit that they made a mistake. All I wanted was an apology and an assurance that procedures were in place to make sure it couldn’t happen to anyone else.

Now I feel my only option is the legal one which I will have to fund myself. I feel that with earlier diagnoses I wouldn’t have needed chemo. Does anyone know if invasive ductal carcinomas start out as non invasive? If so how long does it take for it to become invasive?

My prognosis is good, if I continue to take the tamoxifen, and part of me feels I should just be grateful to be alive but I have so much anger because of this I feel I need to do something.

Do you mind if I ask if you funded the legal action and if so how much did it cost?

Thanks

Dear all,

Kate 67 - Thanks for your very encouraging comments. I really appreciate them.

Jakey - I’d be interested in knowing the details of your case although I realise that you can’t name the Trust or any individuals involved. It may be worth your while investigating future increased insurance premiums for things such as mortgage insurance. Increase in mortgage insurance premiums due to breast cancer tends to be based on size of lump and length of time since diagnosis, both of which are affected by delays in diagnosis. My financial advisor wrote a report on this for my solicitor and she then passed it to the Trust. It is very difficult, I know, to cope with the delays in settling out of court. I wonder how much time I spent emailing and phoning my solicitor and using the words “Have you heard anything yet?”. When the case does settle make sure that you plan something nice with the money. I took my family to Kenya for a couple of weeks - not on a luxury safari but an adventure camping holiday. Fantastic, risky (as all adventure holidays are) and very good for us all.

Mouse H - I know just how awful all this can be. Doctors and Trusts don’t necessarily admit things for fear of being sued. Have you got support from friends, family or partner? You are going to need to recover from the mastectomy. Chemotherapy and radiotherapy can be tough but you will get through them. As far as the delay in diagnosis is concerned there are a three things that I would strongly advise you to do. Firstly write down all the things that have happened (GP, first referral, other breast clinic appointments, etc) with names, dates and details of any conversations. Do this now because later on it is easy to get muddled and forget exact details. Secondly get a copy of your patient notes from the Breast Clinic/hospital and a copy of your medical records from your GP. You are entitled to access all information about yourself. In my situation I had to pay £15 to have photocopies of my patient notes sent from the hospital - the hospital had to send them within 40 days. I wrote to my GP surgery and told them I wanted copies of my medical records and agreed a date and time to go down and photocopy them. It is worth getting information from your GP even if you are happy with the referral because the consultant from the breast clinic will have sent a letter informing your GP of the results of any consultation at the breast clinic. Thirdly, download a copy of the NICE guidelines nice.org.uk/page.aspx?o=csgbcguidance (if you live in England or Wales) or the SIGN guidelines sign.ac.uk/pdf/sign84.pdf (if you live in Scotland). These mention the Triple Assessment and are indicative of best practice. All this will take a little while. In the meantime you need to concentrate on recovery.

DippyKate - I’m not actually on the bcpals website; I’m running a business and have barely enough time to read comments from one website. I know that you haven’t been well and I know that all this GMC/legal stuff can take over your life. The main thing is that you keep well. If you do feel that you want to pursue this further my advice is to talk to family and friends about it and then make sure that you have a copy of your version of events, a copy of all patient notes/medical records and a copy of the guidelines before you start asking questions.

Princess2 - Gosh, another delay in diagnosis. Well done for getting as far as you have. I’m very glad that your prognosis is good. It’s worth notes that 10 year prognosis figures are, by their very nature, 10 years out of date. Due to improved treatment they are even better tahn we might think. I chose not to use the complaints procedure because I didn’t want to give any control of what happened next back to the medics. Other have tried to use it and found it unsuccessful. If you aren’t satisfied with the complaints procedure you could refer your case to the Ombudsman. Others have found this problematic too but you may feel it is worth a go. Legal action is difficult and expensive. You need to be aware that it is just about gaining money for damages and not about punishing the doctor(s) concerned. Any legal action has to take place within 3 years of when you first knew a mistake had been made. You can’t do it at the same time as compIaining to the Ombudsman so if you do decide to contact the Ombudsman don’t mention anything about lawyers. I went to the local solicitor who drew up my will and he recommended a firm well known in legal circles with a department specialising in medical negligence cases. I went to see them. Their first hour was free. They gave me an idea of the process and the costs involved. I then had all my patient notes/medical records sent to them and started the ball rolling. In the end I paid out a total of about £13,000. This paid for the medical negligence solicitor’s time and the experts’ time. I needed a GP expert, a pathologist expert, a breast consultant expert and a psychiatrist expert. If the case had gone to court the legal bill would have been much higher (I wouldn’t have qualified for legal aid) so you have to think very carefully about it all. In the meantime I think you need to make sure (if you haven’t already done so that you have copies of your patientntes/medical records and a copy of any scans such as the MRI scan.

Hope that this is useful.

With very best wishes,

Sue

Hi ladies

I am just amazed that in this day and age such things are still happening! Totally unacceptable. If I didn’t know better I’d be thinking that GP’s, SHO’s and even some consultants are no better informed than the general public. Shame on them. Shame on the trusts for not censuring them. Shame on the GMC too.

I applaud all those willing to stand up and be counted when such things happen. It is too much like David taking on Goliath - blowing the whistle on bad practice, mal practice and the like is incredibly hard as they close ranks to protect their own. It would be more refreshing to have them stand up and admit they were wrong and put the things in place to stop it EVER occurring again.

Thank you Sue for highlighting this and congratulations on getting a result.

Thank you Sue and quisie for your encouragement. I have found a firm of medical negligence solicitors who are willing to give their time for free though I will have to pay for the medical reports which I think would be a couple of thousand, if the medical reports are in my favour I can then get conditional fee insurance so it may be worth getting the reports done. I don’t think it can be a big claim as I have worked throughout my treatment (it kept me sane (ish)!).

It does seem very wrong that the medical profession seems to close ranks when things go wrong and it is so stressful for people who are ill to fight them. I don’t know if I can still go to the ombusman (i’ll look into it) as it is a while since the hospitals final response. The complaints procedure protects itself with strict timelimits on what you can do and when.

Good luck to everyone to everyone. It’s such a shame we have to go through this.

Kindest regards

Dear All
Just a quickie to say i managed to get cover for a previous medical negligence claim (appendix abscess) through my house contents insurance, with Nationwide have family legal cover which i didnt realise I had until solicitor told me to check. I have to say that took 4 years from start to finish and settled out of court the week i waited for my lymph node results…Also now about to start out on a complaints procedure about my 18 month delay in diagnosis due to a number of errors and no biopsy, luckily for me had remained DCIS although was extensively necrotic and i have gone on to have a mastectomy and recon…my medical notes are just a catalogue of errors!! I want to make sure the consultant doesnt make the same mistake with an invasive tumour patient!! I have to say the previous medical neg claim was extremely stressful and like swimming through tar at times…when all I really wanted was the consultant to admit his mistakes say sorry and never do it again!!
Good luck to you all
Picasso