Diagnosis of wrong cancer

After Mr B went to his GP complaining of pain and a lump in his right testicle he was referred to a specialist who performed an orchidectomy (removal of a testicle). The tissue was sent for analysis and the pathologist diagnosed testicular cancer, the treatment for which was chemotherapy.

Six months later, Mr B noticed a swelling in his groin and, following a biopsy, he was informed that he had diffuse large B-cell lymphoma (a common type of non-Hodgkin lymphoma) and underwent a different course of chemotherapy. Unfortunately, Mr B’s condition deteriorated and he died twelve months later.

Grounds for a medical negligence claim

It transpired that when the tissue from Mr B’s first operation was sent to the pathologist for examination, a protein test known as immunostaining, which would have helped to establish what type of cancer he had, was not carried out. This resulted in the wrong diagnosis being made and the wrong treatment being carried out. It was only when Mr B returned to his doctor with a swelling in his groin that the correct diagnosis, followed by the correct treatment, was made. Had this been done in the first place, it is likely that Mr B’s life expectancy would have been considerably enhanced.

Legal proceedings

Mr B’s widow had previously consulted another firm of solicitors about pursuing a medical negligence claim against the hospital who treated her husband but they went into administration before they had submitted the claim. Therefore Mrs B approached us to represent her. We wrote to the hospital setting out the grounds for Mrs B’s claim in that the hospital’s failure to diagnose her husband’s cancer correctly led directly to his premature death. In response, the hospital admitted a breach of duty to Mr B but they denied causation, in other words, they did not admit that the misdiagnosis directly contributed to Mr B’s death.

Hospital settled in the face of the evidence

We appointed an expert witness jointly with the hospital to give an opinion on whether Mr B’s death was as a direct result of the initial misdiagnosis and his life expectancy if he had been treated correctly. Eventually, the hospital, having admitted breach of duty, did settle and Mrs B was awarded a six figure sum.

Lessons learnt

This is not the first time in our experience that an NHS hospital has not only failed to diagnose a serious illness correctly in the first place but also been slow to follow up with the appropriate treatment once the correct diagnosis had finally been made. This failure caused the patient an unnecessary amount of suffering and increased the legal costs substantially. This type of situation is exactly what has contributed to the UK’s reputation as being poor at diagnosing cancer with consequentially lower survival rates than in countries with comparable health systems. NICE has recently released guidelines to help GPs recognise cancer symptoms and this is part of a much wider initiative to promote earlier diagnosis in the expectation of preventing thousands of unnecessary deaths.

About the author

Jeanette Whyman Partner

Jeanette is head of the medical negligence team. Having worked previously for Hospital Trusts, Jeanette has extensive knowledge of hospital practices and procedures. This means that she is able to assess a case speedily and to anticipate the other parties' position – this enables her to put forward the best possible case on behalf of her client.