We represent many clients who have had a cancer misdiagnosis or late diagnosis. A cancer diagnosis can cause upset, stress and anxiety to the patient and their loved ones. A misdiagnosis or late diagnosis of cancer can lead to even more distress, and feelings of anger, blame, mistrust and resentment. To improve patient outcomes it is vital that we learn from past behaviours and support patients and their families in the most compassionate way possible. Here our David O’Malley, Partner in Medical Negligence, outlines the current position and improvements he would like to see.
The Impact of a Cancer Misdiagnosis or Late Diagnosis
A Cancer Misdiagnosis or Late Diagnosis can lead to patients undergoing more aggressive treatment regimens than would have been required by an early diagnosis. It can lead to poorer prognosis and outcomes. This in turn increases stress on patients, their families and healthcare resources.
Medical Negligence Claims for Cancer Misdiagnosis or Late Diagnosis
Every patient is owed a duty of care by medical professionals. Where that duty has been breached by misdiagnosis, delayed diagnosis or the delivery of inappropriate cancer treatment a patient may take a medical negligence case. These cases can prove very arduous for the patients and their families. However over the years they have helped identify errors and failures in medical care, and bring about improvements across our healthcare system.
Thousands of other patients have benefited from improvements made to healthcare delivery in response to the outcomes of medical negligence cases. However the adversarial nature of many of these cases, which are robustly defended by the HSE and other stakeholders, can be daunting for patients and bereaved families.
High profile cases like those taken by cervical cancer patients Vicky Phelan and Ruth Morrissey have shone a light on poor practices and procedures that led to delayed and misdiagnosis. Both cases established the right for compensation on their lost years due to the misreading of their cytology scans. A recent case established one does not need show a diminuition of life expectancy to successfully be compensated for the traumautic effect and more invasive treatment of a misdiagnosis.
Role of Mediation in Cancer Medical Negligence Cases
It is critical that we move to a less adversarial process. Mediation offers a simpler, quicker and less arduous alternative to reach a settlement than a fully fought Court case. Mediation affords patients and their families greater dignity. They do not have to face an open court whilst undergoing treatment or when unwell. They avoid publicly discussing, and being cross-examined on, often intimate medical details and the impact of illness on their bodies, mental health and close relationships.
Change to Legislation Required
Article 2 of the European Convention on Human Rights states that “Everyone’s right to life shall be positively protected by law”. Ireland needs to create a positive duty on our state institutions and executives to vindicate that right and prevent needless deaths occurring in state institutions such as hospitals and/or mental health units.
Inquests and Coronial Law
In the cases where the cancer patient does not recover there may be an inquest. An inquest is an official enquiry, held in public and led by a Coroner (sometimes held with a jury) to enquire into the cause of a sudden, unexplained or violent death. It is an inquisitorial process.
Our current system of inquests dates back to Victorian times and urgently needs to be overhauled. We need to improve access to the system to enable families have swifter access and find answers to what happened to their loved ones in a much more timely fashion. There needs to be more detailed investigation in to deaths from cancer, to understand any shortcomings or failures so we can learn from them.
In Ireland, coroners can only recommend an action, they can not direct that an action be taken. There is also no central database for Coronial findings. This means that should an inquest in Mayo find shortcomings in medical treatment or processes contributed to a death it is not possible for the Coroner to direct that action be taken to address these issues. Furthermore information found at an inquest in one County is not shared with medical facilities across the country. These are some of the matters addressed in Medical Inquests a recently published book I co-authored.
We could learn from the UK System where it is common for a Coroner to rule that certain actions are taken to address a matter in a specific timeframe. There is also a shared database of recommendations so issues that occur in one healthcare setting are flagged to others and procedures can be implemented to avoid repeat failings.
Time Limits on Taking a Fatal Injury Case
The traditional time limit is two years from the date of death. However, if the deceased was aware of the negligence for more than two years pre-death this can diminish that right. Therefore it is vital to ascertain all the facts when taking a fatal injury case as a result of a cancer misdiagnosis.
If you have any questions on the topics raised here or would like further information you can contact David O’Malley in our Ballina office and listen back to an interview with him on Midwest Radio here.