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Compensation for knowledge of delayed diagnosis

View profile for Susan Bartfield
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A recent decision of the High Court highlights the different ways in which a delay in diagnosis can affect a cancer patient.

Mr M had a biopsy taken from a wound on the sole of his foot in November 2011.  A histopathologist (a doctor specialising in examination of tissue samples) diagnosed a non-malignant ulcer.  The wound failed to heal and the ulcer was surgically removed 9 months later.  The tissue was again examined by a histopathologist who found a malignant melanoma – a dangerous form of skin cancer.  Further surgery followed shortly thereafter, more tissue was removed from Mr M’s foot and examination of lymph nodes revealed that the cancer had spread.

On behalf of Mr M it was argued that further examination of the tissue samples taken in November 2011 showed that the cancer should have been diagnosed at that time, that surgery would have taken place which would have removed all of the cancer and the spread to the lymph nodes would have been avoided. 

The Hospital Trust disagreed maintaining that whilst, with the benefit of hindsight, the cancer was present in November 2011 it was so difficult to identify that it was excusable to miss it.  The Hospital Trust also argued that even if diagnosis had been made in November 2011 the treatment would have been the same.

Having listened to expert evidence relied upon by each side the Court took the view that diagnosis should have been made in November 2011 but that essentially the treatment would have been the same – removal of significant amount of tissue and examination by biopsy and removal of the same amount of lymph nodes as were actually treated.  To this extent Mr M was no worse off as a result of the doctor’s mistake.

However, the Court did find that had earlier diagnosis been made Mr M would not have had to undergo the initial removal of a small amount of tissue as the larger operation would have taken place instead.  A sum in damages was awarded for the pain and inconvenience of the smaller operation together with limited loss of earnings incurred as a result.

More unusually, Mr M also recovered damages to compensate him for “the mental anguish and suffering he endured after being told of the misdiagnosis, through having to come to terms with it and making life changing difficult decisions, for a loss of confidence in the medical services he had received and increased uncertainty about his survival prospects”

The Court acknowledged that Mr M would have had uncertainty about his survival prospects even if earlier diagnosis had been made but that he would have maintained confidence in those treating him and that the injury was, in part, the loss of such confidence.

The case underlines the importance to a patient of their ability to rely upon and have confidence in their medical carers.   It also highlights the willingness of the Courts to acknowledge injury over and above, even in the absence of, physical pain and suffering.

If you or someone you know has suffered an injury as a result of sub-standard medical care please contact our medical negligence team on 0113 245 8549 or by completing an enquiry form. 

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