Cancer Compensation Claims Loss of Chance

Most often the earlier cancer is diagnosed and treated the better the outcome is likely to be.  When people learn there has been a delay in diagnosing cancer they worry that it might be too late to treat, or, if treatment is possible, that there is a risk that the cancer might come back.  When the delay negatively impacts a person’s chances of relapse they might have a loss of chance cancer compensation claims.

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As the law stands at the moment in order to have a loss of chance claim a claimant must be able to show that if the delay had not happened they would have had a better than 50% chance of achieving a complete cure.  This leads to what in my mind is a perverseness in the law.  For example, take Patient A who has had a negligent delay in diagnosing his cancer.  Patient A obtains medical evidence which states had the delay not happened he would have had a 52% chance of never having cancer again. But because of the delay that chance has now been reduced to 48%.  No we look at Patient B.  Patient B also had a negligent misdiagnoses of cancer.  However, perhaps because of the nature of the cancer, had the delay not happened he would have had 50% chance of never having cancer again. But because of the delay he now only has a 10% chance of not relapsing.   As the law stands today Patient A whose chances have been reduced by 4% will have a claim but Patient B whose chances have been reduced by 40% cannot bring a claim because he never had better than 50% chance in any event.

When this issue was considered before the House of Lords (as it then was) the requirement of having more than 50% chance was considered to be good law by a 3 – 2 majority.  However, Lord Nicholls in particular gave a strong dissenting judgement and questioned whether the correct approach the Courts should be taking was to compensate anyone who suffered a material diminution to their chances, regardless of whether those chances were ever above 50% prior to negligence.

Not so long ago we the law of clinical negligence was shaken up when the Supreme Court decided the case of Montgomery.   I would not be surprised if there was a departure from the law as it today if the case was to be decided again.

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