Tim Jackson


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Medical Negligence

When Lyudmila first felt a pain in her breast she visited her doctor immediately. The doctor, finding no 'palpable' lump, and seeing her of menopausal age (45), diagnosed mastitis and advised her that there was little that could be done except take painkillers. The symptoms persisted and got worse so she returned to the doctor several times. She felt that the doctor thought she was 'being a nuisance' so she found other reasons for a visit so that she could mention the breast while in the surgery. She specifically asked about cancer, having read magazine articles etc, which suggested that her symptoms could be indicative of it. The doctor rejected this suggestion out of hand saying "Lyudmila you do not have cancer", and did not re-examine her breast..

It was six months before her doctor took a holiday and she had to see another partner. This doctor immediately referred her for a mammogram, and shortly afterwards a surgeon removed her breast with a 7cm advanced multifocal cancer and 18 affected lymph nodes.

Lyudmila was understandably very shocked and angry about this and began looking for revenge, and to find out what went wrong. We found that there were several possible approaches. We could follow the National Health complaints procedure, we could write to the General Medical Council or we could sue. We talked to a solicitor specialising in medical negligence and he recommended that we should sue. (With hindsight, 'well he would wouldn't he', that's how he makes his living.)

He felt that we were unlikely to get any action from the GMC, and the NHS told us that we could not use their complaints procedure if we were also going to court. The only thing the GMC could do would be to strike the doctor off, and precedent shows that they are not likely to do this for such a minor misdemeanor as ignoring a patient with a life threatening condition.

Suing is also of limited value. It does not impact the doctor personally as the cost is borne by their insurance. It does however mean a (relatively) independent investigation into the causes (at our expense), and the potential for winning financial compensation. I think most people, like us, are attracted to this path because it is the only way to find out what went wrong.

In order to sue for negligence you have to prove two things. One, that the doctor did not follow accepted practice, and was negligent. Two, that there was a quantifiable loss, which was attributable to the negligence, and which is greater than the cost of bringing the case. This looks easy, but in practice it is not so.

There are published guidelines for referral for mammogram, and persistent breast pain is one of them. It was clearly wrong to send her away after the third visit, telling her she did not have cancer and to come back in three months, without even reexamining the breast.

On the face of it the doctor could argue that such incompetence and unconcern is normal. The newspapers regularly report similar cases, and it could be said that we have no right to expect a doctor to follow published guidelines, as so many do not. However bringing such an argument would be highly embarrassing to the medical profession, and would be unlikely to be accepted by the court even if legally correct.

That a loss occurred is even easier to show. She lost a breast, she suffered considerable discomfort and pain and she died leaving a six year old daughter. There are precedents for quanta in this sort of case.

The hard part is attributability. The specialists report indicated that mastectomy would be the treatment of choice for a multifocal invasive aggressive tumour in whatever stage, and that lymph node involvement would be present at an early stage. So the breast loss was not attributable to the delay.

Now we start to deal in probabilities. To prove attributability in a civil action it must be proved 'on the balance of probabilities'. That is to say that there was a less than 50% chance of the cancer being terminal if discovered promptly, and a more than 50% chance if discovered when it was.

As a graduate scientist I find this hard. The implication is that if there were a 49% probability of death, and a doctor's minor error increased this to 51%, then negligence legally caused the death (if it happened). However if there was only a 49% probability of the disease being curable and the doctor took no action at all, the doctor would bear no responsibility for the outcome.

Similarly if the disease were 100% curable and negligence introduced up to a 49% probability of death, the law would say that death was by mischance, not due to negligence. Apparently playing Russian Roulette cannot legally be a cause of death, it would just be bad luck if you died.

Clearly it would be in the interest of the medical insurance company to avoid having their doctors treat patients with a prognosis close to the 50% morbidity mark as the legal consequences for their actions are strongly amplified.

It is possible to sue for the 'loss of a chance', but the amount of compensation obtainable would be unlikely to cover the costs of the action.

So we have a pathologist examining the excised tissues and trying to create a backtrack. Less than 4 lymph nodes involved and less than 1.5cm tumour would be a reasonable point to operate and expect survival. At what date would that have been likely to be the case, and would a reasonably efficient doctor have diagnosed cancer by that date? The preliminary opinions are that one would not, but we are having the study done anyway because I know in my heart, from having watched it grow, that this is about the size it must have been when the doctor turned her away.

We await the results, but it is too late for Lyudmila now anyway, so who cares. It would be nice not to have to pay the fees (totalling about 3000), but the compensation is really irrelevant.