By Anna Walsh, Principal, Medical Law Department, NSW and ACT
The diagnosis of cancer is an event that often involves a multidisciplinary effort. From the general practitioner who refers the patient to a specialist, to the specialist who orders various investigations, to the surgeon who performs the biopsy, the pathologist who analyses the biopsied material, to the oncologist who confirms diagnosis and discusses treatment options. One break in this chain can lead to a delay in diagnosis and possibly an avoidable death for the patient.
In law, there are various rules surrounding who bears liability for fault. The wrongful acts or omissions of employees are covered by their employers via the principle of vicarious liability so long as the employee was acting within the scope of their employment. In those circumstances, the employer is named as the defendant in court documents. In cases involving private doctors or health care professionals, a more detailed review of their contract for services is required in order to determine whether the individual or the organisation is liable.
Generally speaking, a public patient in a public hospital can rely on the principle of non delegable duty of care to sue the hospital, regardless of whether a private contractor was at fault. This is because the law recognises that certain organisations, because of their size, their function or their capacity to control the provision of services, should properly be held liable. Where the fault lies with an individual not part of a public hospital system, such as an outside radiologist or general practitioner, enquiries need to be made about that person's contract for services to ascertain whether there is an entity that covers their wrongful acts or omissions or whether they should be sued in their own right.
When a person suspects that their cancer diagnosis was delayed through negligence, the investigation of a potential claim will involve many steps by their lawyer, including identifying the correct defendant. It will usually mean looking at the potential liability of all those health professionals involved in the patient's care and deciding whether or not they acted in accordance with proper professional standards, usually with the help of expert medical opinions. The case may involve multiple defendants and this in turn may add to the length of time it takes to resolve a case, particularly if the defendants file cross claims in which they attribute blame to each other. As time can be of the essence in these cases, the investigation of a possible delayed or wrongful diagnosis of cancer case will require expert legal advice to ensure that the correct person or persons are sued and the the case can move forward as quickly as possible.