Medico-legal Aspects of Delay in Diagnosis of Breast Cancer

As a capricious and heterogeneous disease breast cancer may be difficult to diagnose and despite being appropriately treated may relapse unexpectedly. Governmental pressure to reduce waiting for women with breast cancer may lead some patients to suspect that very short delays may impact adversely on their prognosis. In this supercharged atmosphere of anxiety, communicational skills of breast surgeons may be constantly tested so that minor solecisms may translate into major patient dissatisfaction. With this background it is unsurprising that more patients are turning to litigation in an attempt to obtain satisfaction for what they perceive as medical negligence.

Requirements

In order for a case alleging medical negligence to be successful the claimant has to successfully negotiate at least 3 hurdles. Firstly, did the doctor  have a duty of care Thus, was the defendant the claimant’s general practitioner or a member of a hospital team to which a GP referral had been made? Incorrect advice given by a doctor to a friend or acquaintance does not make that individual liable since they do not have a duty of care.

Secondly were the history-taking/ clinical examination/ advice/ procedure negligent? Negligence is defined as an action which no responsible doctor would have taken. Under the normal circumstances where there are various courses of action, provided that there is a sensible body of medial opinion for a particular approach that is not negligent even though a medical expert might not agree with the defendant’s allegedly negligent advice. An example of this is sentinel node biopsy where one body of opinion advocates a combination of tadio-isotope and dye whereas others use one or the other.

If the medical expert deems that negligence has occurred, such as failing to obtain a tissue diagnosis on a solid breast mass the next hurdle is determination of causation. For causation to be established it must be shown that as a result of the negligence the claimant has suffered an injury, that is, a significant worsening of prognosis, and/or a need for more extensive surgery or radiotherapy and or a requirement for more toxic systemic therapy and/or psychological damage. At present, in claims for delay in diagnosis of breast cancer it is necessary to prove that the claimants 10-year survival has changed from being >51% to <49%. Hence a reduction from 95% to 60% or from 45% to 25% will not meet the criteria for causation. Proportional damages are not granted at present.