Medical Negligence

Hospital Trust to challenge terminally ill patient’s case in court despite admitting its negligence led her to missing reviews to scan for cancer

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8 min read time

An NHS Trust is challenging a legal case brought against it by a patient alleging delayed diagnosis of terminal lung cancer – despite admitting its negligence caused her to miss reviews and scans.

It means Denise Fallon, 68, of Hull, who is already two years beyond her life expectancy due to her illness, will have to face lawyers for questioning about her treatment in court next month.

Chris Moore, joint head of clinical negligence at Hudgell Solicitors, is acting on behalf of Mrs Fallon, and says the missed scans denied Mrs Fallon an earlier diagnosis.

He says he has sought to reach a compensation settlement out of court which both reflects the admitted failings of the Trust, and the impact on Mrs Fallon, and that the failure to bring the case to an “amicable and sensible resolution” has put a “great and unnecessary strain” on his client during her final years.

She first had surgery to remove a small cancerous area on her lung in 2014 and was then placed on a schedule of six-monthly reviews.

Mrs Fallon says doctors agreed with her that subsequent investigation into an area of concern close to the site of her surgery would be by way of CT scans rather than x-rays, because CT investigation was more reliable in picking up whether the cancer had returned .

After a couple of appointments, she was not recalled for further reviews, which she assumed was a positive sign.

However, the Trust had inadvertently removed Mrs Fallon from the review list without her knowledge, which was against its own protocols, meaning the opportunity to spot the return of her cancer as soon as possible was missed.

Between 2016 and 2018, Mrs Fallon suffered from increasing breathlessness, but put it down to the impact of having had part of her lung removed. However, it became so bad that she returned to her GP in 2019, suspecting something more was wrong.

It was only then that she was sent for further tests and was told that not only had the cancer returned, but that it was too advanced to treat successfully. She underwent two procedures to drain her lungs and was told she had just 18 months to two years left to live.

Legal case seeks damages for delay in diagnosis and suffering caused.

Hull University Teaching Hospitals NHS Trust has admitted breaching its duty of its care with regards to the missed appointments. However, it has refused to accept that the cancer would have been picked up earlier, perhaps as early as 2017, if the appointments had gone ahead.

It is also disputing Mrs Fallon’s recollection of being promised CT scans, pointing to protocols which say only x-ray scans would have been conducted.

Mr Moore says the Trust are “arguing protocols rather than dealing with reality” in a bid to avoid agreeing compensation in a case which he says is “adding unnecessarily to the legal costs and also causing significant distress to Mrs Fallon and her family.

“The reality is, this is a relatively low value claim we are looking to settle on behalf of our client. Sadly the cancer is terminal but this lady has suffered unnecessarily as a consequence of admitted negligence and this really is a matter which should be capable of settlement without having to put this lady through the ordeal of a trial,” he said.

“We are looking for an amicable and sensible resolution which recognises that the missed appointments denied Mrs Fallon the opportunity to spot that the cancer had returned earlier. Had this happened, she would not have suffered from the same deterioration in her health, and she would have avoided two treatments to drain fluid from her lungs by being on medication earlier.

“The Trust are defending the case on one set of protocols relating to scans, having caused the delay in diagnosis by not having followed another set of protocols for review of cancer patients.

“We are dealing with the reality of how badly she was let down. Knowing Mrs Fallon, and how she has fought this cancer to allow herself every possible minute with her family, I believe her when she says she would have demanded CT scans as she had agreed this with her Doctor and was aware this gave her the best chance of detecting any recurrence of the cancer.

“In more than two decades of representing clients in medical negligence cases, I don’t think I’ve seen a more shocking defence of a case than this. We always look to settle cases out of court where possible, and that needs both sides to take a sensible and realistic approach.

“We think it’s appalling to effectively force Mrs Fallon to go to court and question her, when the only people who did anything wrong were the Trust themselves. I am astounded that they are requiring a terminally ill lady to go through the ordeal of giving evidence at trial in a case of modest value and where negligence has been admitted

“This could and should be avoided by reaching a sensible settlement, which she could use to enjoy her final years with her friends and loved ones. This has put a great and unnecessary strain on her.”

‘I can’t believe it has come to this’

Mrs Fallon, who started the legal case four years ago, says she can’t believe she will need to go to court and face questioning.

“I can’t believe it has come to this, especially given they admitted from the start that they had been negligent and not followed their own protocols with regards my follow-up appointments,” she said.

“I can remember the area of concern being mentioned on one of my initial reviews, but they said they were 99% certain it was scar tissue from the operation and that the cancer wouldn’t come back because it was so small and had been removed successfully. I was asked if they wanted to continue with CT scans as they were more detailed, and I said I did.

“When I wasn’t called back for further reviews I assumed it must have been because all was ok. If I’d had any sense that I should have been having more reviews I would have been there each and every time because I knew it was my life at stake. They made the error.

“I’ve done all I can to fight this. I was told in 2019 I had 18 months to two years to live, but I’m still here. Back then my grandson Oliver was just one and I said to him that I may not see his first day of school, but that is this September and I can’t wait to take him.

“I’ve had to fight through terrible days where I’ve felt so poorly on my medication. I’ve lost my hair twice, I’ve had rashes all over my face and body and I still have to rush to the toilet.

“Going to court is not something I want to do at my age and in my health, but I’ve fought it all the way to still be here now, so I’ll fight this case too.

“Lessons have to be learned, as when I was going to appointments I spoke to many other patients who’d had mix-ups and cancelled appointments without them being told. It’s potentially life-costing, but it appears they don’t want to do the right thing by patients when they have done wrong.

“It has never been about the money to me, and I’ve known from the very start that the claim is limited in value due having already had cancer back in 2014, that was explained to me. But I was very badly let down and I feel I deserve something for that.

“If I were to be awarded damages, I’d like to go to New Zealand to visit friends. It’s something I’ve always wanted to do and a bucket list wish of mine. The thought of that, taking my grandson to school for his first day, and not giving up on this important case, drives me on.”

Delayed Cancer Diagnosis Claims

At Hudgell Solicitors we sadly see the negative impact any delay in cancer diagnosis and treatment can have on long-term health each and every day. In some such instances, there can be grounds for a medical negligence claim to be made.

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