Speeding up cases when a cancer sufferer is critically ill

20 June 2013

By Dimitra Dubrow, Principal, Medical Law Department, Melbourne 

Medical negligence cases involving delayed diagnosis of cancer arise where cancer should have been detected but has been missed because of negligent medical treatment. Such cases range from failures by general practitioners to recognise the need for further investigations or specialist referral, to specialists not performing appropriate testing and to misreporting of radiology and pathology.

The ramifications of missed or delayed diagnosis of cancer are varied. For some, the time lapse thankfully results in no or little worsening of the cancer. While this might medically be the probable scenario, it is rarely of comfort to the patient.  Everyone knows; early cancer diagnosis is vital and time is of the essence.

Yet worse still are the cases where the delayed diagnosis impacts on prognosis.  Sadly, in many cases, the delay results in metastatic spread and the condition progressing from curable to incurable. So, a patient is facing down the barrel of a terminal illness which would have been avoided had reasonable medical care been taken.

When legal claims for a terminal cancer are pursued, it is essential that they are resolved in the person's lifetime. This is to maximise the recovery of all potential heads of damage including pain and suffering, loss of earnings, medical and like expenses and other out of pocket expenses.

To ensure that this occurs, once a claim is issued with the court, an application for a 'speedy trial timetable' is made. The application is supported by a medical report, preferably from the plaintiff's treating oncologist, noting the plaintiff's condition and life expectancy prognosis in months. A timetable ensuring all court steps are taken within the projected life expectancy is invariably provided by the court.

The co-operation of the solicitors acting for defendant health service providers in meeting these sometimes very tight timeframes is an impressive example of the way parties in litigation can work well together to achieve a laudable aim.

In some cases, in order to ensure the evidence of the plaintiff is always available, even where the plaintiff's condition deteriorates to the point of them lacking capacity, their evidence is taken earlier by way of de bene esse. All the usual court rules of evidence apply and the evidence is available should it be needed later.

If a dying plaintiff's claim is not resolved in their lifetime, the claim for pain and suffering damages is extinguished by virtue of the death (death from an unrelated cause ie intervening accidents will not so extinguish). In Victoria, under Section 29(2) of the Administration & Probate Act 1958 the only claim left to be pursued by the estate of the deceased is for out of pocket expenses including medical treatment expenses and loss of earnings of the deceased resulting from the negligently delayed diagnosis.

Section 29(2A) of that Act provides an exception to this whereby pain and suffering damages is preserved for a death from a dust related condition eg asbestosis and mesothelioma.

If the claim is not brought in the person's lifetime, in a delayed diagnosis cancer case causing death, or indeed any negligently caused death, a claim can be pursued by the dependants of the deceased for loss of financial and domestic support. Such claims are limited to cases where dependency can be established. 

Aside from this, the only remaining action for those left behind is a claim for psychiatric injury arising from the death in negligent circumstances. Each State and Territory of Australia has particular provisions governing such claims. 

Given the above restrictions, it is vital that all possible steps be taken to ensure the claim is commenced and resolved in a dying person's lifetime. Not only will the recovery of compensation be maximised and realised in their lifetime, but it will ideally leave the person with some quality of life, with 'legal matters' out of the way in their final moments.

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