Tuesday, 2 December 2014

Causation in Delay in Diagnosing Cancer Claims

Last week I represented the claimant at a trial at the High Court in Cardiff before Mr Justice Wyn Williams. On the fourth day of the trial the parties agreed a settlement  for an undisclosed sum. So a number of interesting issues in the case did not have to be determined by the judge. Although I cannot provide definitive answers I thought it might nevertheless be of interest to outline a couple of the issues because they are likely to arise in other cases in the future. Everything discussed below was canvassed in open court and the facts have already been reported in the press.

Breast Cancer Cell

The claimant was referred urgently by her GP for suspected breast cancer when aged 31. She had a discrete breast lump which had persisted for six weeks. A surgeon at the Princess of Wales Hospital, Bridgend, downgraded the referral to routine on the basis that she was under 35 and that there were no worrying features or "red flags" beyond the presence of the lump (this is the second case I have conducted recently in which the defendant has denied that it was negligent to apply different referral criteria from those recommended in the NICE Referral Guidelines for Suspected Cancer). As a result the breast cancer was diagnosed and treated five months later than would have been the case had the referral been confirmed as urgent. The surgeon did not inform the claimant's GP of the decision to downgrade. After evidence from surgeons at the hospital, the defendant admitted at trial that but for its negligence the claimant's treatment would have commenced five months earlier. It was agreed that on earlier diagnosis the treatment would have been exactly the same as was given on actual diagnosis. The question was whether, the claimant having sadly later relapsed and developed overt metastases, earlier treatment would have been more effective.

Two points of interest on causation were as follows:

1. The Use of Prognostic Tools

The experts agreed that the most useful model for assessing likely prognosis in this case was the PREDICT model based on a study of women in East Anglia and which the NHS makes available online. The PREDICT model indicates that in September 2010 when the claimant ought to have had treatment over 90% of women of her age and with her cancer characteristics (tumour size and grade, axillary node involvement, ER, HER2 and PR status) would have survived at least 10 years. The corresponding figure for February 2011. when treatment was actually given, was about 80%. Following her relapse in 2014 she now has a very limited life expectancy. Was the evidence of life expectancy as at September 2010 valid? The defendant's case was that the relapse showed that the claimant's cancer was unresponsive to treatment and that she would have relapsed at exactly the same time even with earlier intervention. The claimant's case was that the PREDICT model remained valid - relapse following actual treatment did not establish likely relapse following earlier treatment. During the period of delay the tumour had grown and the number of axillary nodes involved had increased. Both of those are known to be important, adverse prognostic indicators. Indeed the mortality rate had (just) more than doubled during the period of delay. The cancer was more advanced than it ought to have been at the time of treatment.

This issue is common to many delay in diagnosing cancer cases. Similar circumstances also arose in the first instance decisions in Adshead-v-Tottle and Cutting-v-Islam (both on Lawtel). In the last few months I have concluded several cases where the patient had already passed away following delayed treatment for cancer. In all but one the defendant has contended that the delay made no difference to the outcome. This then is an important issue in this field of litigation.

Where the outcome following actual treatment is known, it may well be wrong to categorise these as Gregg-v-Scott cases which some argue (wrongly in my view) should be dismissed because they are merely claims for a reduction in the chance of a cure. At the very least a reduction in median life expectancy can sometimes be established (compare with JD-v-Mather). Where there has been a relapse, then unless that fact wholly undermines the evidence of likely cure on earlier diagnosis, the comparison is between actual outcome after treatment (relapse and limited life expectancy) with probable cure on earlier treatment (with corresponding likely life expectancy) as demonstrated by the PREDICT or any other appropriate model. The contrary view is that the relapse proves that the cancer was particularly resistant to treatment - so much so that treatment was never gong to prevent a relapse, whenever given.

2. Material Contribution

Since the claimant had suffered a relapse, with the development of overt metastases requiring further treatment and consequent significantly shortened life expectancy, she had suffered a distinct injury. We contended that the delay in diagnosis and treatment had caused or materially contributed to that injury. Perhaps the claimant's cancer was particularly aggressive but the delay had at the very least, made a more than minimal contribution to the relapse. The development of overt metastases was an "indivisible" injury and there were cumulative causes of it, of which the negligent delay was a material one. There is some debate about the use of Bailey-v-MOD for "indivisible" injury following remarks by Smith LJ in the Atomic Vets case (which seem to contradict her judgment in O2-v-Dickens). If the negligent delay caused or made a material contribution to the relapse then, on the face of it, the claimant will have established causation. If the negligence causes or materially contributes to the relapse and the relapse accounts for the reduced life expectancy (or accounts for a death that has already occurred) then the claimant's case may be made out.

The settlement spared the court the task of sifting through many academic papers and several statistical analyses. These cases are not straightforward. It seems clear however that there is no one test for causation applicable to all delay in diagnosing cancer cases. What may be applicable in a case where prognosis remains favourable following actual treatment, may not suit a case such as this where there is a very poor prognosis.

My client listened to all these "interesting" arguments with great patience and dignity. Unfortunately the same arguments are likely to arise in other cases in the future.

I was instructed by Javid Asharaf of Beers LLP and my junior was Tom Goodhead of 9 Gough Square.

I published a series of posts some time ago on delay in diagnosing cancer.

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