Having conducted several cases arising out of delay in diagnosing prostate cancer, I thought I would outline some of the key issues which have arisen.
The NICE Guidelines for referral for suspected cancer (2005) indicate that urgent referral (two weeks) should follow if the patient has a normal prostate on digital rectal examination but the age-specific PSA is raised or rising, whether or not the patient has lower urinary tract symptoms. For patients whose clinical state is compromised by other co-morbidities, a discussion may be more appropriate. The age-specific cut-off PSA measurements set out in the guidelines are:
50-59 years of age: 3.0 ng/ml or above
60 -69: 4.0 ng/ml or above
70 and over: 5.0 ng/ml or above (but no age-specific reference ranges for men over 80).
There are other circumstances under which urgent or non-urgent referral should follow which are set out in the Guidelines (and the predecessor Department of Health Guidelines).
In Adhsead-v-Tottle 25/10/2007 (QBD) (unreported other than on Lawtel) Mr Justice Gray held that when referral guidelines had clearly indicated urgent referral for a patient with suspected breast cancer:
"The guidelines are not prescriptive but it appears to me that in circumstnaces such as obtained here, a failure on the part of a general practitioner to follow guidelinse such as these is at least prima facie evidence of negligence on his or her part."
"In the case of a patient who presents with a potentially life-threatening symptom, I do not accept that a responsible general practitioner would delay referring her, even for a short period, in circumstances where the recommendation made unambiguously in the guidelines is to refer immediately."
The Guidelines do not have the force of law but if a GP fails to refer a man with a PSA over the age-specific cut-off then, absent a good explanation for the failure to refer urgently, a finding of negligence would, I suggest, be likely. If the decision is to repeat the test in three months, it is incumbent on the GP making that decision to ensure the repeat test is performed.
In relation to causation an expert is likely to advise that the key issue is whether the tumour would have been organ-confined at the date when referral/diagnosis ought to have been made. The grade of the cancer - measured by the Gleason score - is unlikely to change significantly or at all during the period of delay. In some cases, perhaps depending on the Gleason score, some experts will rely on tumour velocity or doubling time to assist giving a prognosis. They will rely on studies by D'Amico and others.
Issues concerning life expectancy and damages for the "dying Claimant" are for future posts.
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