My doctor recently diagnosed me with cancer but said that tests show the disease should have been discovered six months ago. If I am not yet in pain from the disease can I still claim failure to diagnose cancer compensation?

Eoin P. Campbell, LL.B., Solicitor

Editor in Chief

Eoin P. Campbell

Answer:

Claims for failure to diagnose cancer compensation are an exception to the general compensation guidelines that you are only eligible to receive compensation if it can be demonstrated that you have suffered a loss, an injury or the deterioration of an existing condition due to the negligence of a party who owed you a duty of care.

In a claim for compensation for failing to diagnose cancer compensation it would be argued that the claimant has lost the opportunity to receive treatment which may assist or cure his condition and that there will almost certainly be a loss in life expectancy. Although you have not yet sustained a quantifiable injury, there is a legal precedent which enables failure to diagnose cancer compensation claims to be made.

In 2004, in Philp v Ryan (41.R. 241), the Supreme Court awarded compensation for the failure to diagnose cancer against Bon Secours Hospital in Cork. The presiding judge – Mr Justice Nial Fennelly – ruled that “It seems to me to be contrary to instinct and logic that a plaintiff should not be entitled to be compensated for the fact that, due to the negligent diagnosis of his medical condition, he has been deprived of appropriate medical advice and the consequent opportunity to avail of treatment which might improve his condition. I can identify no contrary principle of law or justice.

Mr Justice Fennelly´s ruling enabled people like yourself, who had previously been unable to claim compensation for the failure to diagnose cancer, to make claims against the medical practitioner who was responsible for the initial error of diagnosis – provided that the discovery of the failure to diagnose cancer was made within the previous two years. As your doctor has indicated that tests identifying the disease should have led to a diagnosis six months ago, you will be well within the time limits imposed by the Statute of Limitations to claim failure to diagnose cancer compensation.

As medical negligence has been the major contributing factor to your claim, the Injuries Board Ireland will decline to process an application for assessment of compensation for failing to diagnose cancer submitted to them. A medical negligence solicitor will be required to pursue a claim on your behalf but, as your doctor has already established that a negligent event has occurred, it should not be a long process to recover compensation for the failure to diagnose cancer.

Hopefully your doctor´s discovery of your disease has been made in time for you to receive appropriate treatment for cancer, but it still advisable to speak with a medical negligence solicitor at the earliest possible opportunity to discuss your eligibility to claim failure to diagnose cancer compensation and discuss how much compensation for the failure to diagnose cancer you may be entitled to.