This is why it is essential that individuals become familiar with their own bodies so that they can spot any unusual changes.
When such changes become apparent, it is crucial that you maintain a diary of symptoms so that the GP can exercise their judgment more accurately. Most GPs will err on the side of caution and refer you for more exploratory tests; however, you may be advised to monitor the symptoms carefully at home for a couple of weeks to see if they get worse or better.
Although the NICE guidelines exist to help doctors recognise potential cases of cancer, human error may lead to a misdiagnosis (either no cancer or the wrong cancer) and the wrong treatment given. It is an established fact that the earlier cancer is detected, the greater the chances of recovery – on the assumption that the right diagnosis is made in the first place and the correct treatment prescribed. If you are concerned about any aspects of your treatment, it is important that you raise the issue as soon as possible as the earlier you complain, the sooner the problem can be addressed – and it is worth emphasising that raising concerns is not the same as a legal claim.
Making a complaint
Every GP practice and hospital has a complaints procedure (which all NHS organisations are required to have under the NHS constitution). The starting point is an informal process which encourages you to raise any concerns verbally with the person in charge of your care. This is often the quickest way to resolve the problem as your concern may be something that can be easily fixed or explained.
If you feel unable to speak to someone directly, you can also feedback your concerns via a feedback form which you can access either via the hospital or GP practice website or by asking a member of staff (often reception) for a copy.
Making a formal complaint
If you feel the informal process is not working, you can trigger a more formal procedure providing you do so within 12 months of the problem occurring or 12 months from when you first became aware of the problem. This timing can be adjusted if there is a good reason. If you are directing your complaint to the hospital, details of the person to whom you need to address your written complaint will be listed in the hospital’s complaints procedure which the hospital is required to produce on request. For a GP practice, you would normally write to the Practice Manager. There are several bodies who can help you with managing a complaint including the Patient Advice and Liaison Service in hospitals and the NHS Complaints Independent Advocacy Service, available via your local authority.
Making a medical negligence claim
If you feel that your concerns have not been adequately addressed, you may have the basis for a cancer negligence claim but it is worth noting that the evidence bar required for a successful claim is very high.
Time limits: Under normal circumstances, a legal claim must be brought within three years of the date of the injury (or death) or from the point at which it became clear that medical error was responsible for the injury/death. Please note the different time scale for making a complaint, as explained above.
Establishing your claim: the chances of establishing a successful claim will depend on the breach of duty and the harm caused – and this is the basis on which we can advise you whether or not your claim is sufficiently strong to proceed. We will assess your claim using three criteria:
- The healthcare provider must be guilty of a ‘breach of duty’. This means that the care you received fell short of what is deemed acceptable (which broadly means that a reasonable body of medical opinion agrees that the action taken was not of the standard expected);
- You were injured or received a worse than expected outcome; and
- The injury you received was as a result of a ‘breach of duty’.
Making your claim: Given the high standard of proof required to determine medical negligence, many claims do not succeed. However, of those that do succeed, the majority settle before reaching court. However, there is a legal process to be followed which may, or may not, end in court:
- Pre-action protocol: A Letter of Claim sent to the Defendant (the person or organisation against whom the claim is being made) sets out the allegations. The Defendant must reply (a Letter of Response) within four months. This reply will decide whether or not to instigate court proceedings.
- Court proceedings: A claim is issued (legal documentation setting out your case is placed with the Court) in either the High Court or County Court. The procedure follows a path laid down by the Court rules and requires exchange of your evidence which will include a statement from you and expert medical evidence.
- Trial: once the evidence has been assessed and the parties have negotiated on the issues involved, the claim can go to trial which should take place within 12 to 18 months of the claim being first issued. The judge will decide at this stage if your claim will succeed or not.
- Personal representative / Litigation Friend: you can bring a claim on behalf of a family member if they are a minor, unable to represent themselves or deceased.
Valuing your claim: The value of your claim will depend on a number of issues including pain, suffering, loss of earnings and likely future losses (such as care requirements). Your compensation will be made up of ‘general’ damages relating to pain, suffering and loss of enjoyment of life and ‘special’ damages relating to past and future financial loss, such as loss of wages and the cost of care. We can advise you on how your compensation is likely to be assessed..
Next steps: It is crucial to record as many details about the medical treatment you received and that you can remember and the effect your injuries have had on your everyday life. In addition:
- Keep all relevant documents
- Record all related expenses
- Keep a ‘care’ diary to record the time either that you spend looking after a family member who is the victim of clinical negligence or that family members spend looking after you
There are many excellent, dedicated doctors who regularly make judgments based on their experience; very occasionally they will make a wrong call resulting in a tragic outcome. But this does not mean that they will face a negligence claim – in most cases they will not as there will be no case to answer because a reasonable body of medical opinion will concur that they would have made a similar decision. Where negligence claims will succeed is where the reasonable body of medical opinion agrees that the action taken was not of the standard expected.
Taking on a claim as a patient is not for the faint-hearted. In my experience, people will only come to me as a last resort – and I will only take on their claim if it has merit: more than 85% of our initial enquiries from patients fail the test and are rejected (and these in turn represent a very small minority of patients who have been treated). When it comes to medical mistakes negligence is rarely the reason for making a wrong decision. However, where there has been a clear failure to follow accepted procedures and negligence is a factor, there is an established process to follow.