Delay in diagnosis of Cancer: Compensation post Gett

Posted on October 8, 2010 by Julian Johnson

One of the most emotionally demanding, complex and ultimately, often rewarding categories of case handled by medical negligence lawyers, are those cases arising from a negligent delay in diagnosis of cancer. At any one time, I am generally acting in 4 or 5 such cases.

Following the High Court's decision earlier this year, in Tabet v Gett [2010] HCA 12, uncertainty has been expressed, particularly by those representing medical defence organisations, as to the recovery of compensation in such cases.

I thought it interesting to conduct a 'straw poll' of lawyers (and others) reading my blog, as to whether they think recovery will be possible, in the following categories of case, following Tabet.

As can be seen, the categories depend on the assumed expert opinions as to the likely effect of the relevant delay in relation to the client/patient's outlook. I think these categories cover the ambit of such claims commonly seen. In each category it is assumed that there has been negligent care and this has caused the delay in diagnosis and treatment of the cancer - for argument's sake, lets assume a 12 month delay. As can be seen, I have sub-divided the categories into 2 categories, being those in which recurrence/spread of cancer has occurred v those in which it has not (but potentially may do).

The categories are:

Where Recurrence of Cancer Has Occurred and it is likely the Client will not survive

In the first 3 scenarios, recurrence has occurred and the client/patient is likely to die from their cancer. In this group, the 3 scenarios are:

  1. where it is likely (more than 50% probability) that if diagnosis had occurred at the time it should, the cancer would have been successfully treated and the recurrence/spread would have been avoided.
  2. Where it is less than a 50% chance that earlier diagnosis, when it should have occurred, would have led to successful treatment and avoidance of the recurrence/spread. In such category there is nonetheless an appreciable chance (though less than 50%) that appropriately timed diagnosis and care would have altered the tragic outlook.
  3. the same scenario as (2), but were the chance of successful treatment and a different outcome, had appropriately timed diagnosis and care occurred, is only very small (<5%).

Where No Recurrence of Cancer has Occurred

In these 3 categories, no recurrence has occurred yet. In this group, the 3 scenarios are:

  1. where it is a better than 50% chance that recurrence will occur in the future (say within 5 years). It is also likely that if diagnosis had occurred at the time it should, the cancer would have been successfully treated and the risk of recurrence/spread would have been very much less (and < 50%).
  2. Where it is less than a 50% chance that recurrence will occur in the future, but this chance is greater than it would have been, if diagnosis had occurred at the time it should, and such difference in likelihood is significant (say 25%).
  3. the same as scenario (2), but the difference in likelihood of recurrence is small (say < 5%), in other words, the effect of the delay in diagnosis and treatment has been a slightly increased chance that cancer will recur in the future (though the overall chance remains < 50%).

It will come as no surprise that I think recovery should occur in all such categories, though obviously its quantification will vary greatly depending on the category:

Let me know your views on whether damages can be recovered in each of these 6 scenarios, anonymously if you like. I will (assuming I get a reasonable number of replies!), post a blog entry summarising the consensus of views expressed.


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Patient Responsibility - International Differences Highlighted by Recent Case

Posted on July 22, 2009 by Julian Johnson

I was interested to read recent news reports concerning a case decided in Canada. An Indian/Canadian man, Mr Kahlong was awarded CAD $5 million in a claim against a Hospital in Vancouver.

According to news reports, Mr Kahlong who was 41 years of age suffered from low back pain for which he was referred for a CT scan. The CT scan demonstrated some abnormalities and the radiologist asked Mr Kahlong to return for a follow up scan. Mr Kahlong failed to heed this advice believing for some reason that his pain would go away on its own. In actual fact Mr Kahlong was suffering from spinal tuberculosis which was a progressive condition, ultimately resulting in profound cognitive impairment and disability.

The British Columbian Supreme Court found the Hospital at which the radiologist was working to have been negligent. They found he should have, but did not, promptly provide a written report upon the initial abnormal CT scan. The Court decided that had such report been prepared (and presumably provided to the treating practitioner etc.) it would have lead to a chain of enquiry which would have resulted in diagnosis of Mr Kahlong's condition.

The Court decided (understandably) that Mr Kahlong was also negligent by failing to follow the radiologist’s advice to return (known as contributory negligence).

The consequence of deciding there was contributory negligence is that the patient’s damages are reduced by the percentage by which his own negligence is decided to have contributed to his injury. In Mr Kahlong’s case, he was decided to be 30% at fault and so he lost 30% of his compensation.

I have to say that this seems from the news report, to have been a very generous decision from Mr Kahlong’s perspective. My expectation would be that if such a case was presented before our Courts, it would be far more likely the case would have failed entirely. I think it likely our Court would conclude that it was the patient’s negligence in failing to follow the radiologist’s advice that led to the non-diagnosis.

Alternatively, I would have expected a significantly greater percentage of negligence to be found on the part of the patient.

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