Abstract
The Deceased was 71 years of age at the date of alleged negligence and died in March 2006.
The Claimant had a history of previous heart attacks and mini-strokes. He was admitted into the Bristol Royal Infirmary, which is part of the Defendant Trust, in February 2002 during which time he underwent a triple heart bypass operation. Following that surgery, a chest X-ray was carried out at the beginning of March 2002, which was reported upon following discharge from hospital in mid March 2002, as showing a possible tumour in the lung. Unfortunately, this diagnosis was not followed up at that time nor at subsequent outpatient appointments.
The Deceased was later admitted into the Bristol Royal Infirmary in October 2002, at which time the previous chest X-ray abnormality was noted; a further CT scan which was carried out in November 2002 again showed a tumour in the lung and unfortunately yet again this was not followed up.
The Deceased's lung cancer was not diagnosed until October 2005, by which time his general health had deteriorate to such an extent that he could receive no treatment for his lung cancer. He subsequently died in March 2006 without having received any active treatment for the lung cancer.
The widow of the Deceased, and the Claimant in this matter, made a formal complaint in respect of her late husband's medical treatment. As it would later transpire, a full investigation into the circumstances of the treatment was carried out, as a result of which it was admitted to the Claimant in a minuted meeting as part of the complaints process that there had been a delay in diagnosing the lung cancer from November 2002 onwards. Immediately upon being instructed, the Claimant's solicitors copied the meeting minutes to the Defendant and requested an admission of liability but none was forthcoming.
Upon receipt of the Deceased's medical records from the Defendant, including the complaints documentation, it became apparent that the Defendant had known all along that in fact there was a delay in diagnosing the cancer from March 2002 onwards but that had not been shared with the Claimant at the above meeting, which was clearly in breach of the open and transparent approach to complaints required by the Department of Health guidelines. Even when this was pointed out to the Defendant, they still refused to admit liability.
An expert report was, therefore, obtained and a Letter of Claim was served alleging breach of duty in respect of the delay in diagnosing and treating the Deceased's lung cancer from March 2002 onwards, and claiming that but for the negligence the deceased would have lived for approximately 1 more year and might have been able to receive palliative treatment which would have altered the circumstances of his subsequent death. A Part 36 offer was also made in the sum of £11,500, which represented general damages only, on the basis that any claim for financial losses would be swallowed up by CRU recovery. This offer was never responded to within the 21-day time limit, despite the Claimant's solicitors chasing for a response.
The Defendant was allowed to accept that Part 36 offer of settlement in the sum of £11,500 out of time.
It is the opinion of the solicitor with conduct of this matter that this is an example of the NHSLA failing to make early admissions of liability where it is reasonable and appropriate that they should do so and, therefore, unnecessarily increasing the costs incurred by Claimant Solicitors. It is also a clear indication that the Department of Health guidelines in respect of the complaints process are not being adhered to, which weakens the validity of that whole process and thereby increases the likelihood of litigation being necessary, where as here, the full truth revealed by the complaints process is not shared with patients and their families and as in this case it appeared that there had been a previous set of failings in similar circumstances.