If the date when diagnosis would probably have been made but for the defendant's negligence is the "opportunity date", and the date when diagnosis was actually made is the "diagnosis date" then the litigator needs to establish the likely treatment at both dates.
The treatment given at diagnosis will be a matter of record. The treatment which would or should have been given at the opportunity date will have to be established to the civil standard of proof using other evidence. Crucial evidence will include:
- what the characteristics of the cancer would have been at the opportunity date (see Part 3);
- what treatment options would have been offered or recommended to the claimant;
- what treatment the claimant would have opted to have.
It would be a mistake not to consider both the recommendations for treatment and the claimant's election. Different patients will make different decisions about treatment even when given the same advice about the same stage/grade of cancer. Some women might choose a lumpectomy, others a mastectomy.
The treatment which would have been given at the opportunity date is relevant for two obvious reasons. First, in many cases involving delay in diagnosing cancer, the treatment is the injury, or one of the injuries suffered. Second, the treatment which would have been given is relevant to the likely prognosis on earlier diagnosis.
In later posts I will consider the issue of prognosis and reduced life expectancy, but litigators should not lose sight of the possibility that the difference in treatment due to the delay could be a substantial injury in its own right. In one case of mine the delay in diagnosing a synovial sarcoma led to the claimant having her leg amputated. With earlier diagnosis she would probably have had had the cancer excised and have avoided amputation. In many breast cancer cases a mastectomy would have been avoided but for the negligent delay. Sometimes the adjuvant therapy would have been avoided. Sometimes the injury is a complication of such avoidable therapy, such as complications of chemotherapy. Avoidable treatments may have long term implications for the claimant's capacity for work and need for care.
In Froggatt-v-Chesterfield (reported on Lawtel) the High Court awarded £75,000 general damages for PSLA (current value over £100,000) to the claimant who had undergone an avoidable mastectomy and no fewer than eight subsequent operations including breast reconstruction surgery.
When determining what difference earlier diagnosis would have made to prognosis and life expectancy, it is of course necessary to consider what treatment would have been given. If you are considering the likely prognosis for breast cancer using Predict, for example, you need to know what, if any, adjuvant therapy would have been given. Experts may differ as to their opinions of what treatment should have been given, but the first question is what treatment is likely (in fact) to have been offered. The relevant Trust may have had a protocol or guidance. It may be possible to consider what the relevant Multi-Disciplinary Team was recommending for patients with similar cancers at the relevant time (with anonomysed disclosure). In one of my cases the defendant's surgeon asserted that the claimant would have undergone full axillary node clearance whereas the MDT minutes showed that women with similar cancers were being recommended axillary node sampling only.
In subsequent posts I will tackle the difficult issue of prognosis and the decision in Gregg-v-Scott.
See this blog post for links to resources and authorities.