A judge has ruled in favour of a terminally ill cancer patient – and awarded her damages – in a case against a hospital Trust which took the matter to a trial despite having already admitted its treatment had been negligent.
Hull University Teaching Hospitals NHS Trust admitted its failure to recall Denise Fallon for annual reviews, having previously been treated to remove lung cancer, was negligent.
However, it denied that those missed check-ups had caused a delay in diagnosis, causing Mrs Fallon, 68, to need to undergo two procedures to drain fluid from her lungs, and suffer from symptoms of ill health which could have been treated earlier.
Mrs Fallon had previously had surgery to remove a small cancerous area on her lung in 2014 and was placed on a schedule of six-monthly reviews.
However, after attending follow up appointments for approximately a year, she was not recalled for further reviews, as the Trust had inadvertently removed her from the review list without her knowledge and discharged her from its care.
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. 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 the procedures to drain her lungs and was told she had just 18 months to two years left to live.
Mrs Fallon’s legal representatives at Hudgell Solicitors, had sought to agree a ‘modest damages settlement’ out of court, given the admission of negligence from the Trust, and taking into consideration her health.
However, the Trust denied causing a delay in diagnosis, meaning that Mrs Fallon, who has already lived beyond the life expectancy she was given by doctors, had to endure a two-day court trial and be cross examined by a barrister over her treatment and her health.
After hearing all the evidence, the Judge ruled that, had the Trust continued to review Mrs Fallon annually, the return of her cancer would have diagnosed in 2018, at which time she would have started palliative treatment which would have prevented her needing the procedures to drain fluid from her lungs. She would also have avoided two hospital admissions and the increase in symptoms she experienced, the judge said.
‘Court hearing had been avoidable’
Chris Moore, joint national head of clinical negligence at Hudgell Solicitors, represented Mrs Fallon and was critical of the Trust for not settling the matter out of court.
“We’re obviously delighted that justice was delivered and that the judge found in favour of Mrs Fallon in recognising that, had the Trust continued to review her annually, the cancer would have been spotted around year earlier, and she would have commenced treatment which would have prevented the build-up of fluid in her lungs,” he said.
“It vindicates our case completely, and underlines what we were saying for a long time in negotiations with the legal representatives of the Trust, that this case should have been settled out of court.
“Negligence with regards to failing to recall Denise for reviews was admitted, and for that we sought a modest settlement to compensate her for undergoing procedures which could have been avoided, and for the impact on her health due to the delay in diagnosis.
“Denise always said that she wanted a settlement as she felt that would be an indication of the Trust accepting the suffering it had caused her at a difficult time in her life. Despite extensive efforts, settlement was not forthcoming, and so she was determined to see it through, even though she found the court hearing exhausting and somewhat intimidating.
“This really should all have been avoided, and at a lesser cost overall too.”
‘I want to put it all behind me now’
Mrs Fallon said at times it felt like she was on trial during the hearing, and is now looking forward.
“I didn’t want to have to go to court, but I didn’t want to back down as I feel it is important that such significant mistakes are admitted and addressed. If they are not, changes won’t be made,” she said.
“Giving evidence was difficult. I was being asked to recall details of my treatment, and asked questions about the evidence we had put forward, in a way which made me feel like I was being accused of not being truthful. They made me feel like I was on trial, which of course I wasn’t.
“I couldn’t have had more support than I did from my legal team. Chris was just as determined as I was to see it through as he was very much of the opinion this was a case which should have been settled out of court, and that to do so would have been best for all parties.
“I’m glad I had him supporting me, and I’m glad I took this all the way. I’m sure they felt I’d back down and buckle by making it go all the way to court, but once it went on so long, there was no way I was walking away from it.
“I’m looking forward now and putting this behind me. I recently took my grandson to his first day at primary school and that was something I never thought I’d be able to do. He never looked back and looked like he didn’t have a worry in the world. It was wonderful and I want to focus on the positives in life.”
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.
Every delay in cancer diagnosis and treatment is a risk to health and a person’s potential recovery.