The following case relates to delay in treatment of cancer. In 2001 Mrs H consulted her GP after finding a lump in her breast and was immediately referred to a specialist who undertook a mammogram, ultrasound scan and core biopsy. The (locum) histopathologist graded the biopsy specimen as B5A Ductal Carcinoma in Situ (DCIS) and reported “…no definitive evidence of micro-calcification”.
The specialist told Mrs H that the breast lump was pre-cancerous and advised a lumpectomy. Three weeks later Mrs H underwent a wide local excision of the lesion and the histopathology report noted “No evidence of invasion seen”. Because the lesion was oestrogen and progesterone receptor negative Mrs H was referred for a course of radiotherapy and was then regularly followed up as an outpatient.
In 2004, at a regular follow up appointment, Mrs H was told that the excised tissue specimen from 3 years previously had been reviewed (because of concerns about the particular locum histopathologist) and found to contain an area of invasive cancer of a fairly aggressive type. She was shocked to learn that, because of this revised diagnosis, she would have to undergo clearance of her right axillary lymph nodes. Seven of these nodes did in fact show metastatic spread of the cancer.
Although further tests revealed that the cancer had not spread beyond the axilla Mrs H had to undergo a further course of radiotherapy as well as adjuvant chemotherapy with Taxol, which resulted in significant side effects.
If the correct diagnosis had been made in 2001 Mrs H would still have required axillary clearance and a course of radiotherapy but her chemotherapy treatment would have been less intense and less toxic because it would not have been necessary to use Taxol. This drug is known to have very unpleasant neurotoxic side effects. Mrs H had 4 injections of Taxol, 3 weeks apart, and for a period of several days following each injection she experienced considerable pain in her legs, making walking very difficult. She also experienced severe discomfort in her hands and feet similar to electric shocks and painkillers had little effect.
Expert oncology evidence concluded that the delay in treatment of cancer cancer marginally increased the risk of recurrence, but it did not increase the risk from less than 50% to in excess of 50% (balance of probabilities).
The Claimant accepted a Part 36 offer from the Defendant of £15,000.00. This was made up almost entirely of damages for pain, suffering and loss of amenity.
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