The law and new medical treatment

DELAYED DIAGNOSIS OF CERVICAL CANCER AND NEW MEDICAL TREATMENTS: HOW CAN THE LAW RESPOND?

This, our first ever blog, is dedicated to the memory of Roger Wicks, a co-founder of SCIL (the Society of Clinical Injury Lawyers). He helped foster a new willingness amongst us to share information. Our blog is posted in that same spirit, in the hope that our experiences help those injured, and their lawyers, to achieve the best they can, despite the obstacles in our path.  Rest in peace Roger.

Diana Lyalle of our clinical negligence team offers her thoughts on the interface between law and medicine in circumstances where a new treatment posed new legal challenges for achieving a just compensation award.

“Cancer treatments have improved in leaps and bounds in my twenty years of clinical negligence practice, and when we were asked to seek compensation for a young mum of two who had developed cervical cancer despite having cervical smear tests, we had to think carefully about the issues raised by the relatively new treatment she had for it, radical trachelectomy, which had not been covered in previously reported cases.

The facts are that our client should have had pre-cancerous changes picked up in 2004, which would have led to relatively minor treatment. Instead, her smear test was falsely reported as negative, so her pre-cancerous changes went undetected.  It was not until she had her next smear test in 2009 that any changes were picked up.  By this time, she had developed cervical cancer.

There was some good news in that due to advances in medical science, and because her cancer was still at an early enough stage, she did not have to have a hysterectomy. However, she still needed surgery.  She underwent a new surgical treatment called radical trachelectomy and pelvic lymphadenectomy.  This meant she could still have children.

As far as our client was concerned, although she now had various unpleasant symptoms associated with her menstrual cycle and intimate relationships which caused her to feel depressed and anxious, as far as she knew, that was the end of it.

However, in order to ensure she was properly compensated for these problems, we obtained expert evidence from a specialist who was instrumental in pioneering radical trachelectomy, and who had kept statistics on the women who had undergone that treatment, in order to obtain the most reliable data there was as to the issues that had to be faced.

He advised that in addition to now having a fourfold increased risk of the cancer coming back which she would not have had if treated in 2004, also, due to the way in which the surgery altered her reproductive anatomy, if she had more children, there was now a substantial increased risk that any pregnancy might miscarry, or would not continue to term, and that she would need Caesarean section as opposed to natural delivery of the baby. If a child is born severely prematurely, it can die, or have severe developmental impairment, requiring lifelong care.

Our client was a young woman who did not think her family was yet complete. She had not had further children by the time the claim settled.  These were therefore very serious risks for her to be facing.

We therefore considered carefully the three available options for awarding compensation to see which was best suited to her case. These are:

  1. Lump sum with nothing else paid in future. This is the “once and for all approach”, and is the most common kind of award;
  2. Part lump sum and part periodical payments for the rest of her life (mainly used in large claims and not suitable here); or
  3. Provisional Damages. This is a lump sum payment, but there is also a court order giving the right to seek more compensation if rare but clearly defined events occur in the future.

Provisional damages payments exist because if a rare event happens which leads to life changing injury, the claimant would be hugely undercompensated if their award did not include an amount to cover that injury. Rather than make a defendant pay compensation for an event which is very unlikely to happen, which would be equally unfair, the claimant can return to court to seek more compensation if that rare event actually happens.

Despite their advantages, in practice, provisional damages awards are rare, because they can only be awarded in limited circumstances, and defendants resist them, preferring a “once and for all” award so as to achieve certainty.

However, we managed to secure an order from the court in this case setting out how much should be paid by the defendant now for the ongoing symptoms, and the circumstances in which our client could re-apply to the court for a further award to reflect the fourfold risk of recurrence of cervical cancer, and the additional risks involved in having further children.

In that way, I hope we achieved a result which in no way penalised the defendant for providing a new treatment which had conserved our client’s ability to have more children, but at the same time, protected her against the risks involved in having more children due to her altered anatomy.

The legal issues involved in this case were new because radical trachelectomy is relatively new. We could not therefore find any previous cases where provisional damages had been awarded after radical trachelectomy, so we had to make sure our order covered all the possible risks and events.  We have since gone on to publish a report about the case to benefit other lawyers faced with similar issues.

My hope is that although it was upsetting and stressful for our client to have to endure this additional treatment and make a damages claim, the order we obtained gives her peace of mind that if anything else happens arising from the delay in diagnosis, she or her children will be able to seek further compensation.”

This area of law is challenging, so it is imperative that claimants with this kind of legal issue are represented only by lawyers who have experience of this type of claim.

If you have suffered from cervical cancer following cervical smear screening, and have undergone more invasive treatment that you would otherwise have needed, there might be more to your case than you initially realise.

Talk to a specialist clinical injury lawyer to explore your rights and options as soon as possible. Strict time limits apply for pursuing claims, so it is essential to find out where you stand right away.

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