October 27, 2020

Claiming for negligent cancer treatment during the COVID-19 pandemic – is it even possible?

Much has been written over the last six months about the effects of COVID-19, and the government’s response to it, upon cancer sufferers. As many as 35,000 early cancer deaths as a consequence of Covid have been predicted as a worst-case scenario.

While much of the focus has been upon the difficulties which cancer patients have had in accessing treatment, there has also been some discussion of missed new diagnoses. This may be as a result of suspended screening programmes, difficulties in getting to see clinicians, and most recently a suggestion that lung cancer diagnoses may even have been missed because of confusion between the symptoms of Covid and lung cancer.

But where does the law fit into this? Do patients affected in any of the above ways have a right of redress, and against whom? Here I will consider the various options, and some of the complexities and difficulties which potential claimants might face.

First, I should acknowledge that it is uncomfortable to write about bringing claims for damages in these circumstances. Our first instinct is perhaps to feel that we are all in this together, and that it is really nobody’s fault. For those directly affected, however, a second instinct may be to look a little more critically at decisions which have been taken over the last six months, and see whether some of the worst outcomes might have been avoidable.

Accessing treatment

Many cancer patients have had their treatment delayed. The journal Lancet Oncology recently predicted that delays in treatment since March could lead to 3,500 avoidable deaths over the next five years. Specific examples include access to radiotherapy and chemotherapy, which are obviously central to curing cancer or extending life expectancy in affected patients.

At the start of lockdown, guidance was issued by NICE about the prioritisation of patients for radiotherapy, which distinguished between different levels of urgency for treatment, depending, for example, upon the aggressiveness of the tumour. While the methodology of the prioritisation has not necessarily been criticised, its application has been. Professor Pat Price, a clinical oncologist of national repute, has said that radiotherapy machines were lying idle which could have saved lives during lockdown, due to interpretation of this guidance.

Where might liability lie here, then? It feels unlikely that the guidance itself would be found to be negligent. A more likely avenue would be an allegation of misapplication of the guidance by individual NHS Trusts.

A claim for misapplication of guidance certainly might succeed, but there would be a significant disclosure element required for an individual patient to demonstrate that their treatment was not prioritised appropriately, given the competing demands, as it would be necessary to demonstrate that other patients given higher priority did not warrant it. A claim on the basis that an NHS Trust failed to give high priority to a patient identified as “Priority Level 1” within the guidance would have reasonable prospects of success, given the status commonly afforded to NICE guidance by the courts.

Missed diagnoses due to delayed tests/screening

A second category of potential claims exists among those who would have had their cancer diagnosed earlier, had tests or screening gone ahead during the last few months, but in fact have had their diagnosis delayed until more recently. Bowel, breast and cervical cancer screening programmes were all put on hold at the start of lockdown, and while they have all now restarted, it stands to reason that diagnoses have been missed or delayed as a consequence.

It is highly doubtful that any claim lies in respect of the decision to suspend screening. As it has restarted, however, there are certainly areas to look at. There have been widespread calls for more resources, which have arguably not been heeded. In the case of cervical cancer screening, priority is being given to people who had an abnormal result before lockdown, followed by those who had an abnormal result the year before, and finally those who did not receive a screening invite during the pandemic. As in normal times, any system failures in administering the screening process would likely give rise to liability.

When reviewing screening for bowel cancer, the backlog relates to colonoscopies. Endoscopy procedures have been among the worst hit by Covid; backlogs are substantial, and growing with every referral made by a GP. In this context, although there is a “resources argument” defence to a potential claim, a claim could proceed if delays become or remain unconscionable after the effects of the pandemic ease.

Another measurable effect of Covid is the delay in diagnostic tests being carried out. There are seven key diagnostic tests often used to detect cancer: flexi-sigmoidoscopy, cystoscopy, gastroscopy, CT, Ultrasound and MRI. In England there was a 39% drop in the number of these tests between March and July of 2020. The number of patients waiting six weeks or more for a diagnostic test has also risen significantly since April, and it has been reported that by July 2020 there were still 12 times more patients waiting six weeks or more for a diagnostic test compared to the same period in 2019.

There is no question of a clinical negligence claim being made purely on the basis of a delay in a diagnostic test caused by the effects of Covid. But delays in diagnosis of cancer may arise from a multiplicity of causes, and if a non-negligent delay as a result of Covid co-exists with a subsequent negligent delay, a claim may be brought on the basis of the doctrine of “material contribution”. I will return to that a little later.

Confusing Covid and lung cancer

It is said that referrals for lung cancer have been the hardest hit out of all cancers, partly because people with a cough have been asked to stay at home. This may mean that people with lung cancer are not going to their GP and are experiencing long delays in diagnosis as a consequence. In some areas it has been estimated that referrals by GPs to lung cancer specialists fell by 75% at the peak of the pandemic in the UK, in the spring of 2020.

A further significant problem which has been identified is that the symptoms of Covid are in some ways similar to the symptoms of lung cancer, with a persistent cough being high on the list. With patients being triaged by telephone or online due to lockdown measures, the differences which might give the clue to the diagnosis in fact being lung cancer can easily be missed.

Although a claim on this basis may be hard to make good, GPs do still have a duty in Covid times to ensure that an accurate history is taken, and to consider all relevant differential diagnoses. Symptoms such as haemoptysis (coughing up blood) and unexplained weight loss would be important in diagnosing lung cancer as a more probable alternative, so if important signs and symptoms have been missed in the history-taking, a claim might succeed despite judicial sympathy with the difficulties a GP was facing at the time.

Complex causation

One thing which can be said for certain is that, for any claim for clinical negligence brought in relation to events which have occurred during the pandemic, it will be difficult to identify and prove a definitive negligent cause (legally-speaking, causation). Disentangling non-negligent delay (inevitable and justifiable as a result of Covid) and negligent delay (arising from sub-standard care) will be a challenge. Fortunately for claimants, the doctrine of material contribution may come to their aid in this context.

If the contribution to the claimant’s injury, or death, from a negligent period of delay is more than minimal, and the court cannot separate out (in scientific terms) the contribution from the negligent delay and the non-negligent delay, the claimant may still succeed in their claim.

The principle is well illustrated by the important recent case of Bermuda v Williams, decided by the Privy Council in 2016. Mr Williams had appendicitis, and there was a negligent delay in treating him after he attended hospital. He developed sepsis, and damage to his heart and lungs. At first instance the court found that the delay was negligent, but could not be proved to have caused all of Mr Williams’ injuries. But on appeal, it was found that the delay had “materially contributed” to his injuries, and on that basis he could recover damages in full.

A material contribution argument is by no means a panacea for all such cases, but on occasions its application may be crucial. It is something that all clinical negligence lawyers looking at such cases should, and probably will, bear in mind.

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