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