The majority of people who undergo x-rays and blood tests for cancer in Ireland are correctly diagnosed. It is not the news they want to hear, but early detection enables timely medical treatment, and in many cases the patient can be cured. Unfortunately, there are a small number of cancer sufferers who are misdiagnosed as not having cancer and, for them, subsequent detection may not come in time to save the cancer from spreading and resulting in devastating consequences.
There are several reasons why a cancer misdiagnosis can occur – most of them attributable to human error or a lack of skill. For example, if you were to present yourself at a hospital or doctor´s surgery, displaying the symptoms of cancer, yet were not thoroughly examined or referred to a cancer specialist, this would be classed as medical negligence. Similarly if your post-examination laboratory results were misinterpreted by technicians, and their error resulted in a cancer misdiagnosis, this would be classified as clinical negligence.
Most Common Types of Cancer Misdiagnosis
The three types of cancer listed below are the most common types of cancer which are misdiagnosed. Along with lung, prostate and bowel cancer, they are the most common forms of the disease, but are statistically more likely to be misdiagnosed due to medical or clinical negligence.
Breast Cancer – Cancer misdiagnosis most commonly occurs in cases of breast cancer where the patient is under 50 years of age. As doctors do not expect women under 50 to have breast cancer, it may be overlooked in an examination or the patient is not referred to a specialist unit for a biopsy.
Colon Cancer – Cancer of the colon initially manifests as an abnormal tissue growth called a “polyp”, about 1 centimetre in diameter. The polyp can take several years to develop into a cancer, but if a doctor fails to refer a patient for tests at an early stage, a delay in cancer diagnosis can result.
Skin Cancer – Skin cancer may appear to the unknowing patient as no more than mole, but a cancer misdiagnosis by a doctor can result in cancerous cells spreading to other organs of the body when, of course, it becomes much more serious and may lead to the risk of a premature death.
Claiming Compensation for Cancer Misdiagnosis
The obvious consequence of a cancer misdiagnosis is the missed opportunity to treat the disease at an early stage and the subsequently reduced life expectancy. Patients will unnecessarily experience pain and suffering when their condition deteriorates, and may have to undergo distressing chemotherapy which could have otherwise been avoided. A cancer misdiagnosis compensation claim should also include an element for psychological trauma, loss of future earnings and any costs accrued when getting treated for the disease.
However, for a claim for cancer misdiagnosis compensation to be successful, it has to be shown that the initial error was avoidable at the time of the cancer misdiagnosis and that “on the balance of probability” the cancer misdiagnosis resulted in an “unfavourable outcome”. Because these two factors of a cancer misdiagnosis compensation claim rely on medical opinion, the Injuries Board Ireland will decline to assess your cancer misdiagnosis claim and you will have to pursue your case through the courts.
Cancer Misdiagnosis Litigation
In order to prepare the strongest possible case for your cancer misdiagnosis claim, your solicitor will apply for your medical records dating back to before you were misdiagnosed with cancer, and organise a medical examination with a medical expert to ascertain that you have in fact experienced an “unfavourable outcome” due to the misdiagnosis. It is also in your best interests to advise your solicitor if you have a family history of cancer, as this is another factor your doctor should have considered.
Where a cancer misdiagnosis can be proven, the Health Service Executive, medical centre or doctor will admit liability and an offer of compensation will be made before court proceedings begin. If liability is admitted, but an adequate offer of cancer misdiagnosis is not forthcoming, your solicitor will arrange a court appearance for assessment of damages by a judge. In only a very few cases will negligence be denied when your solicitor has built a strong case on your behalf.
Cancer Misdiagnosis and the Statute of Limitations
The Statute of Limitations in Ireland allows you two years from the •date of knowledge” of a cancer misdiagnosis in which to bring a cancer misdiagnosis claim. This means that you have two years from the date on which you were correctly diagnosed with cancer in which to claim, even if the cancer misdiagnosis occurred five years previously. Your solicitor may require a significant period in which to obtain the necessary medical reports for your claim, so it is in your best interests not to delay making contact with a solicitor once you discover you are the victim of a cancer misdiagnosis.
- Cancer misdiagnosis can occur due to a number of reasons – usually attributable to human error which is referred to as medical or clinical negligence.
- The three most common examples of cancer misdiagnosis are breast cancer and skin cancer, although no one form of the disease is exempt from cancer misdiagnosis.
- The consequences of a cancer misdiagnosis are painful and distressing. Reduced life expectancy and loss of life are the major factors in a cancer misdiagnosis compensation claim.
- As a cancer misdiagnosis claim has to prove that an “unfavourable outcome” has occurred, the Injuries Board Ireland will decline to assess any claim for cancer misdiagnosis.
- Litigation may be required to resolve your claim for cancer misdiagnosis compensation, but many cases are settled out of court when the negligent party offers an adequate settlement.
- The Statute of Limitations allows two years from the date you discover that you are the victim of a cancer misdiagnosis to make a claim – not two years from the original cancer misdiagnosis
Finding out that you are the victim of cancer misdiagnosis is an emotionally traumatic time and you should contact a solicitor to discuss the points raised in the above article at your earliest opportunity.
It is important to note that each case is unique. If you have been unfortunate enough to have suffered from a cancer misdiagnosis and feel that you have a potential compensation claim you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.
Copyright © 2009-2015 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.