Wednesday, 22 May 2013

Delay in Diagnosing Cancer (2) - Investigations on Referral

As all litigators know, in negligence claims the claimant has to prove both negligence and causation. In delay in diagnosing cancer claims, establishing that a GP or other primary healthcare provider has been negligent may be the easy part. Proving causation is often the most difficult element of the claim.

The first link in the chain of causation, is to establish when the patient would have been seen, on referral, and by whom. The NICE guidelines are again helpful (see Part One) since they set out timelines for referral. It is usually obvious which kind of clinic or specialist would have seen the patient on referral, but in some cases the GP expert will need to advise to whom the referral would or should have been made.

The second link is what would have been done on referral. What examinations or investigations would have been performed? It is that issue that I shall address in this post. In future posts I shall look at the next links in the chain: what would have been found on investigation or examination, what treatment would have been offered and chosen, what would the results of treatment have been, what additional injuries have been suffered as a result of the delay and what effect has the delay had on life expectancy?

In relation to some suspected cancers the question of what would have been done on referral is not difficult. For example where there is a suspected melanoma, it is likely that on referral to the pigmented skin lesion clinic, the lesion will be excised and sent for histopathological examination. The NICE guidelines caution against GPs removing such lesions. In other cases, such as with suspected breast cancer, the answer is more complex.

NICE (again) provides guidance on the assessment which ought to be carried out for suspected breast cancer in its (updated) publication "Improving Outcomes in Breast Cancer". NICE advises that:

"The same standard of care should be provided for all patients with suspected breast cancer, whether they are identified by screening or referred with symptoms. The combination of clinical examination, mammography/ultrasound and image-guided core biopsy or fine needle aspiration (FNA)  - known together as triple assessment - should be available for women with suspected breast cancer at a single visit. Both mammography and ultrasound imaging should be available. Centres which predominantly use core biopsy should also maintain expertise in FNA cytology so that this method can be used when appropriate."

Thus the triple assessment would or should be followed on referral for suspected breast cancer. It does not necessarily involve all three stages being performed. A claimant will need to establish that a triple assessment would have led to diagnosis, but if clinical examination would have been normal  then, in the absence of other good reason to proceed to radiological examination there may have been no ultrasound examination or mammography or biopsy. In one case I conducted much turned not on whether radiological investigation should have been performed but which form it would have taken -ultrasound or mammography. One would have probably led to diagnosis the other not.

You might think it very unlikely that clinical examination of a breast would be normal when it is likely that the GP has referred the patient because of a finding of a lump. However, sometimes referral is because the patient themselves can feel a lump, whereas it is not detectable on reasonable clinical examination. Alternatively the detectable lump may be benign but there is another lump which would have been malignant at the relevant time but not clinically detectable .

Other investigations for other suspected cancers may involve endoscopic investigations such as a cystoscopy or sigmoidoscopy, x-ray or scanning.

It is also worth considering what advice would or should have been given on referral, assuming that the investigations did not lead to diagnosis on the first referral. For example advice which ought to be given might be to monitor symptoms, to return to the GP in the event of certain problems, or to be reviewed by the specialist in 3 or 6 months. In some cases a return to the specialist team after persistent or worsening symptoms may then have led to further investigations and to diagnosis. So, the GP's referral in March might have led to diagnosis in September rather than in April.

Next time ..... Diagnosis and Staging

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