Hello, My name is nine Maloney. I'm a barrister at Hardwick, specializing in clinical negligence and personal injury. This webinar upset both legal and medical issues that arise in cases concerning delays and diagnosing cancer. I've heard it explained to a late lines in conference that these are pushed pool cases. It's very much stretching the application of Einstein's theory. But what that really means is that these are usually difficult claims to succeed it. The mawr detectable or symptomatic claimants. Cancer is the greater likelihood haps of establishing breach duty for a failure to refer to diagnose but generally the worst position you'll be in causation wise. Conversely, the earlier the stage off presentation, the more likely it is that earlier treatment would have made a difference to the outcome. But the more difficult it will have been to detect and therefore established, preach juicy. Luckily, you don't need to be Einstein to win these types of cases. And so on the next slide, you'll see that what you could easily do on all day comforts on this subject and many of its components. For this talk, our cover all of the key areas, but the main focus will be on breaches of duty following referral to hospital was well at some alternative causation arguments to run, particularly on life expectancy. But chronologically, the usual pattern of things is that a concern patient will get to see their GP first. You're already know. I suspect that in a lot of cases that nice guidelines for suspected cancer recognition and referral I'm a starting point, and the current version has been in place since mid 2000 and 15. A breach of these guidelines doesn't necessarily amount to a breach duty, but they're certainly usually a good starting point. Or an indication at least, that there has been a departure from standard accepted medical practice in the well known case of Dom Lee. It is argued by the statement in the Court of Appeal that once breach off any guidelines established on the facts, it's then for the defendant to prove that that departure was reasonable, almost like a resident Salah quitter, reversing the burden of proof type brunch. But that's argument was expressly rejected in the court of appeal, and it didn't survive to the Supreme Court. Of course, Daniel's in context off a guideline on waiting times in a very busy A. Any depart department, when bearing from the guidelines, was healthy, reasonable on the facts. But it might well be less easy for a GP face with classic signs of certain cancers to be able to defend a departure from the guidelines. Breaches of duty for failing to refer is not an area that I intend to spend a lot of time on in this weapon up, but it's worth having a look at. Some of the helpful features have been some parts of the guidelines. Firstly, whether it's suspected lung cancer or soft geul cancer or affect one evident type. Weather is suspected cancer. A GP is expected to make a referral for further investigation under the suspected cancer halfway, and that usually means requesting an urgent two week appointment. A new feature of the 2015 guidelines is that's under section 1.1. Lung cancer on Nevins at the GP should make a referral where any patient age 40 or over presents with unexplained coughing up blood known as him up. This is on the 1.1 point two of the guidelines a GPS required to offer an urgent chest X ray where the patient has two or more off the following and that those symptoms unexplained. And they include very common symptoms off cough, fatigue, shortness, breath, chest pain, weight loss and appetite loss. If the patient has never smote, all that is required is one of these symptoms provided their unexplained. If they have one of these symptoms that unexplained and they have never smoked, then a GP is under a guideline to offer chest X ray to that patient. In my view, that's a pretty low barrier for referral. Of course, if a GP reasonably considers it, for example, cough or shortness of breath is explained by a cold or chest infection, the Net would mitigate against a referral. But if the symptoms don't clear up F after antibiotics have been prescribed, for example, or within a few weeks, then that would be affected. That point more towards or a ferrel on another occasion. Another one. Have a look at our next side ease. The guidelines for breast cancer and that provides of the GP should refer anyone age 30 or over if they have an IQ and unexplained Breslin. Whether it's painful or not, there are lots of other citizens on issues within the guidelines. Some of their fresh holes were referral, maybe surprisingly low for any climb with cancer, even if it's not their main cause for concern. If you're representing the claimant, in my view, it's worth reviewing what was reported to the GP at any particular time in recent years before diagnosis made across referring. But the guidelines to make sure that they were in effect, followed on each occasion off the referral on the next slide. There's a bit of good news. Breach of duty in these cases is not always judge directly on the Boland test with the belie. The qualification and the leading cases of authority for that proposition is case ball Penny. And that was a case which involved the misreading and then something miss reporting of cervical smear tests results. But the principle in Penny isn't confined, in my view, to cited pathology cases in Penny you'll see on your next slide. But Lord Wolf gave leading judgment, having set out Bollerman belie though in some detail. He went on to say that those tests very much applies by the sight of pathologist have seen a feature on the sides and then exercises. They're qualified judgment as to whether to include that feature in their report or not. But what about the situation where the site and pathologist has simply not seen the feature on the slide? It all on DSO is never in a position to make that judgment cool. And Lord Woolf said this defect, with two sets of competent experts genuinely hold different opinions as to whether or not at the date of the examination. The screeners could, without being negligent, have diagnose a smear test as negative does not necessarily provide the solution to the dispute on my ability in these cases. He went on to explain that not only is that the qualification in Beliveau that next bit opinion supporting the defendant's case may be logical. In addition, the Boland test is no application where what the judge is required to do, it's make findings effect. This is so even where those findings effect are the subject off conflicting expert evidence. So that again shows there's an important distinction between misreading a slide, which Lord Wall says it's a question of whether something is there to be seen or not versus the discretion that reporting cited pathologist all radio on a vessel or whatever it may be has when deciding whether to include a feature that they have seen in their report or not. If there is an argument that the screener in fact soul that suspicious finding on a scandal slide but didn't think it was significant and used their discretion Teoh admit it from their report, then that's still very much in the traffic bone, um, territory. But for cases where the screener say that they didn't actually see what your expert says was there to be seen. Lord Browne Wilkinson's free part test in Penny applies, and this is on your next slide. One was to be seen on the slides two. At the relevant time could a screener exercising reasonable care failed to see what was on slides, and three could have reasonably competent screener aware of what a screener exercising reasonable care would observe on the side. Ben Treat inside is negative on this three part test cuts both ways four planes them or questions there are, the more the claimant passed to prove, and them, or that the defendant can attack with more hoops, happen to be done through But if it can be shown that there was something positive detectable on the slides, then the claim It's off to a flying start, in my view, on both limbs one and two of that test, and it essentially make Gates a defendant, arguing that something was very difficult to diagnose. It's only partially visible off one all 50 or 100 slides. A small but reasonable or responsible body of screeners would have missed it. I think that arguments defeated by this test it took me a few reads of the third limb. It's really understand it. But actually I think if you prove limbs one and two and surely the third Lynn well, usually also medically followed, I think What the course saying? The third Lynn is that you treat your cited pathologist or radio just whenever the screen and might be as being hypothetically told in advance off the review of the side that, by the way, it's screener who is exercise. Reasonable Care has seen cancer cells on this side. What they still miss it. It's hard to envisage a situation where a tipped off, reasonably competent screener would still have missed a positive finding. If it's there to be seen on the next slide. Look at the wider application of testing Penny, and it's fair to say that even in the context of delay in diagnosing cancer cases, you very seldom encounter negligent site. Oh, pathology cases. But Penny was looked at in applied in a case called Mueller and Kings High Court Case in 2017. This concern analysis off not a sighted pathology but history pathology sample from a biopsy. It is easy to see. I think, how Penny would fit the facts of this case is pretty difficult, actually, to really differentiate site apology in history, quality unless you're expert. So it may be a surprise that the defendant in Miller argued that the unvarnished Boland test or to reply that's a mission didn't get very far in the treatment succeeded with Mr Justice Kerr. In that case, applying the test in Penny, however, Mr Justice could consider that Penny didn't really make clear. While approach, the court should take two questions two and free off the test that's on your previous slide. Does the Boland test apply to those parts? We use the words reasonable care or reasonably competent or is it, um or nuance Test bowler. The answer seems to be, according to Mr Justice curb, that it isn't the boat approach. Well, she said that Penney's authority that these bound by onto only reject the defendant support of expert evidence. If it was unsustainable, irrational or illogical, it's more likely that the court will b'more interventional you a case of that nature and be ready to apply the bolivar qualification to a penny type case. More helpful part of Miller is Mr Justice kers discussion and distinction between different types of cases in clinical negligence. Essentially, what he said is that there's a spectrum at one end. You have cases involving questions purely of medical treatment and, at the other end, questions purely of making a diagnosis. In treatment cases, you have different options. Some doctors might b'more nice, happy, ready to go the surgery. Others might adopt a more conservative approach. Some doctors would prefer make primary incision in one place at the surgeons in another nets, the art over science approach that's really the root of the bullet test. Just because the majority of doctors acted one way doesn't mean that the minority are negligent, but Mr justice Care, explained that at the other end of the spectrum, pure diagnosis cases are different. It's much more cut and dry. As he put it. Diagnosis is either right or wrong and if wrong, either negligently so or not. And so for any pure diagnosis case, there is an argument that the three stage test from Penny applies, which is far easier to overcome than Boualem, particularly when you're faced with the defendant who has supported expert evidence saying there clinician acted in accordance with the responsible body. I'd suggest that Penny has application beyond more technical history, pathology or cited pathology cases. Think, for example, radiology not just didn't Delaine diagnosing cancer, but also orthopedic cases where there's a delay in diagnosing fracture, um, also perhaps for findings made or not made during exploratory or investigatory surgery. Was something there to be seen that really, I think not in bowling territory following Penny and Miller nets and look at the issues touching upon breach of duty, moving on now to look a causation. The starting point is usually the ordinary. But for test, the Chaiman proves that they're indri or an element of their injury would have been avoided, but for breach of duty, they recover 100% of damages for the effects of the avoidable element of their injury. In any case, four basic causation questions need to be answered, ideally on the balance of probabilities. First is when would the tumor has been diagnosed? But for negligence? Ornette. If you're cases of delaying referral rather than a failure to diagnose on the spot, you'll also need toe unravel. What's in fact would have happened but for negligence. When would the claimants have been seen? By what grade a doctor? What further test would have been carried out? When will those tests have taken place on? Would a diagnosis likely been minute been made as a result of those tests? Ordered further steps need to be taken a lot off the answers, those questions that matters effect. And you may need factual evidence from the hospital trust who may also be, of course, the potential defendant. Second question what stage with the tumor have been at the point it should have been diagnosed are coming. Look at that again in more detail later in this webinar. Thirdly, what treatment would claim have received again? That's a question of fact for which lay witnesses an expert evidence will be required. Your client or claimant may need to hypothetically state whether they would have chosen one treatment auction over another, and the expert will need to send out the various options and the risks and benefits that would or should have been part of the consent process. Trustman also need to revive evidence about what treatment options would have been available, and we're being offered to patients under their care at that particular time. How long that treatment would have stations have been provided. Andi, finally, what would have been treatments, prognosis at the point diagnosis that should have been made versus what is the actual problem this is on. That's another topic I'll come on to look at more closely later on in this weather. In this simplest case, you will be able to show that, but for the delay in diagnosing the claimants cancer, it would have been diagnosed and treated at ST One. They would have had a simple resection, and their long term survival would not been affected by the diagnosis versus On the other hand, that is a result of the delay the claimant is now not likely to survive for more than, say, five years will need a vast amount of basic treatment and substantial care. Unfortunately, not every case is that simple. And the problem is that often in delaying diagnosing cancer cases, you're dealing with moving goalposts for each year that claim lives after their diagnosis. Their chances of long term survival increase. Staging is always a matter for the experts to determine, but it's remarkable how rarely very eminent experts in oncology agree on hypothetical pre diagnosis staging. Staging is generally worked out using the T and M system. Schumer is T and is assigned a number usually between north to four, depending on how large the tumor volume is en means notes and is usually number between north and free on the various sub numbers as well. And that's intended to represent how many of the claimants lymph nodes have been invaded and M is generally either M zero or M one at the M. One means that cancer has metastasized and spread to some other part of the body, and zero means it hasn't metastasized or believes it's not Detective Lee. So yet different cancers of different stagings. But generally something like T one N zero M zero is very early stage and be stage one, where something like T four n free M one is basically end stage for put on your slides. Some examples of staging in viral cancer, but different cancers of different combinations and different qualifications for each one. So four centimeter tumor mass might be t free for something like pancreatic cancer, but you'd need to be almost double that to get T free in something like lung cancer. The basic method is to start with tea. That's the size tumor. You'll need to know what it is from the point of the confirmed diagnosis, and there are likely to be various post diagnosis measurements off the sides of the femur over time. From those measurements, you or at least the experts, could reasonably estimate its growth rate, and that's generally done by using something called doubling times. Doubling times means exactly what it says on the tin. That's the time it takes for the tumor to double in size. Of course, not every cancer has either a consistent, all linear doubling time. Other individual patient related factors may increase or decrease the rate of growth. Your expert should be directed to support their views with reference to a bank of clinical studies. They tend to be more available for the more common types of cancer and using those studies or scientific literature, apply that to the known factors off the individual treatment in the case on. It's important, of course, to make sure that your expert is using the rightful, applicable set of data. The best way in my experience to attack an expert witness in cross examination in these cases is to establish that the data upon which they base their opinions isn't applicable or reliable for effects of the particular case. For some reason, that's not to say, of course, that the right data said always provides the definitive answer in these cases and over reliance on statistics without taking into account. The individual claimants characteristics can be equally damaging to the expert's evidence. Once the doubling time has been ascertained and then work backwards from the point of actual diagnosis and work out what staged a tumor would have been at the point of the misdiagnosis. The case of Hague on your slide is an interesting one in a rare type of cancer. There is a dispute in that case and whether the cancer was Stage one a or one B. At the point of the misdiagnosis, one of the experts did a pretty basic doubling Times analysis, largely relying on taking the actual measurements, post diagnosis and stating that that was the correct approach by reference only to a generic but not specific study which took into account the development cancer after resection surgery, which this training head. The other experts said that the first experts approach was fundamentally flawed because this starting point due to the delay in diagnosis was a fully evolved Kempson, which grew at a slower rate, then developing cancer or earlier developing cancer. And the judge agreed with that Second experts approach. In the absence of any reliable epidemiological data, all the experts in the case breed that the cancer was aggressive, fast growing, the judge fan, the cancer stage one be at the point. It should have been diagnosed the later stage, which meant that it was more damaging to claim its case because of evidence of the symptoms that claim suffering at particular times process. Most of the experts consider that recorded symptoms are bleeding, as was reported in this case, was more consistent with Stage one Be on Stage one A. The only expert that wasn't accepted on this point was the one who had already been discredited because of its earlier use of unreliable data. So case of pain really emphasizes need to rigorously scrutinize the experts data and net example. Inhe takes us back to the push pull nature of cancer cases generally that by the time of symptoms manifesting, that should lead to a diagnosis it sometimes too late to establish a large degree of corporation. The other thing to consider is how reliable the post diagnosis missions are, and you might get a radically different conclusion on Schumer volume from, say, an ultrasound scan than you would on memory scam. The reporting radiologist may not be as accurate with your expert or some features on the scan may have been wrongly assumed to be part of the tumor, where invective more detailed look would reveal its not it might be non cancer assists that just happened to be close by. So in these cases, you often need to consider instructing your own radiologist, all neuro radiologist if you were lying on a treating radiologist assessment as the ball size of cancer ones at any particular time, once you've established the data diagnosis, but for the negligent delay and you've established that staging that would been that point and the likely treatment path. Then you're left with establishing the but for prognosis versus the actual provenances. What you're going to want to prove most of all, if you're acting for the claimant, is that treatment would likely have survived a meaningful number of years. But for the delay in diagnosis, Greg and Scott is a case that's more widely known for saying that you can't recover simply for a loss of chance of survival. You net case. The delay in diagnosis reduced the claimants prospects of survival from around 42%. Have they been diagnosed on time to 25%. So on that basis, there's no recovery on the band's probabilities, even know that negligence caused a 17% diminished chance of survival. In other words, even the claim happy diagnosed on time. There was still a less than 50% chance that's consider the case where claimant would have succeeded entirely on causation have the survival prospects been reduced from 50.1% to 49.9%. Even know that would be a less than 1% reduction in prospects. The 2005 House of Lords case of Gregan Scott does, though, provide two outcomes which are very helpful to claimants and the Philistines. If you can't prove a likely percentage survival but for negligence and you are likely to recover it lee some modest damages thanks to something that Lady Hale said. She said that if without the delay, the payment would have achieved a longer gap before more radical treatment became necessary, then he should be entitled to damages to reflect the separation in his suffering. If the pain and suffering he would have suffered anyway was made worse by the anguish of knowing that his disease could have been detected earlier, then he should be compensated for that. So on that basis it will be rare for a delay in diagnosing cancer case to be entirely defeated on conservation grounds. Even where the delay is not affected, life expectancy or necessarily methods treated now come back to look at the second helpful outcome for planes of breaking Scott later in this webinar, moving on to the next slide material contribution is a topic that doesn't just trouble good lawyers. It also clearly vexes the senior judiciary, often leading to very inconsistent decisions. You could have a very academical Day seminar on the topic of material contribution, but the basic position perfectly for domain diagnosing cancer cases isn't material contribution kicks in to modify the but for test when medical science cannot answer whether claimant would have avoided the injury or would have sustained the same injury on the bandits probabilities where it's proved likely that claimant would have avoided the injury or likely that the train would not. The material contribution does not apply, but when material contribution does apply, you only have to show that the defendants contribution to the injury or the process causing injury was material. And that means more than negligible. Thankfully, in recent years, there's been a slight shift away from viewing things through the prism of divisible and non visible injuries in clinical negligence cases. What matters Mawr is there is a continuous pathological process that the defendant's negligence has contributed to net lends itself very well to cases involving delays and diagnosing cancer. So this alternative causation analysis in something to ensure that your oncology expert covers baby going to look at life expectancy. Another issue that experts will need. Teoh cover comes from Greg and Scott, and this is the second Malcolm that is favorable. Trayvon's Baroness Hale offered train. It's another gold nugget in their scenario, where you come prove survival or a period of additional survival on the balance probabilities in a case where the likelihood off survival even but for negligence, would have been less than 50%. So in the case of Great and Scott, it was, 42% of the point of cancer should have been diagnosed. Baroness Hale suggested that the bar to recovery wasn't that effective itself, but the way in which you claim frame their case in breaking Scott, she said. But have the claimant presented their case on causation along the lines of But for the delaying diagnosis, the medium period of survival would have been 10 years. But now, as a result of the delay, the median period of survival is six years. Then the claimant could recover for four years. Loss of life medium means statistically the figure that 50% of study group sits above and 50% sit blow. So if in the case where came should have been diagnosed and say Stay tree colon cancer on there there is a study off 10,000 people you get Stay tree came on cancer. 5000 live for more than three years. 5000 for lesson For years. The median figure is for years now. If your median figure for Stage four cancer, when that's a In that case, the claim was actually diagnosed two years. Then you have a case for lost years off. One year, the three years months, two years now That's valid, even if all of those people in the stage free group would have died by five years from a point of diagnosis. Five years or sometimes 10 years is generally the fresh hold for what experts will studies Tim as survival from cancer. And so you should always ask your experts for median life expectancy data or an opinion on median life expectancy from their own clinical experience. Studies are often not available for median life expectancy, so that is a introduction, really, to delay in diagnosing cancer trains there will be a data Webinar on lost years claims where we look at the quantum aspects of cases where negligence leads to a shortening of life.
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