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Delayed Cancer Diagnosis & Compensation

Delayed Cancer Diagnosis & Compensation

In this podcast, Accredited Personal Injury Law expert and BPC Lawyers Partner, Courtenay Poulden discusses the legal ramifications of delayed cancer diagnosis.



Dan: Anecdotally, there has been reports that during the COVID-19 pandemic, particularly in 2020, many Australians may have missed out on an early diagnosis of cancer attributable to a lack of screening in doctors generally, and whilst that may have been the case, delays associated with cancer diagnosis is by no means a new phenomenon. In today’s podcast, I’m talking with award-winning and accredited personal injury law specialist, Courtenay Poulden, from BPC about the legal ramifications of delayed cancer diagnosis. So, Courtney, in your experience, has there been an increase in cases where there has been a delay in cancer diagnosis?

Courtenay: Well, there certainly has been in my practice. I’m not sure if it’s an indication of there being more problems in the medical industry at the moment. But certainly, I’ve had a number of requests of recent times. In fact, I’ve got six or seven major failure of diagnosis cases, which I’m working on at the moment.

Dan: Courtenay, medically speaking, what stage are clients at by the time they call BPC to ask whether they actually have a case?

Courtenay: Well, that’s the sad part, I’m afraid, Dan. By the time they get to us, people have found out they have a cancer issue, and they’re wondering whether or not it should have been detected at an earlier stage. So we often get to see clients at a time when the extent of their condition is well-known. This brings with it its own pressures because often simply because of the diagnosis and for the future, these cases have to be run on a very urgent basis to make sure that someone’s properly compensated in their lifetime.

Dan: Just to give listeners some context, do you have any recent cases that you can talk about?

Courtenay: Yeah, I’m happy to, Dan, just to give you a bit of a cross-section of a few cases I’m working on at the moment. I have one lady, and I won’t mention names for privacy reasons, who during the time of COVID, presented herself to a major Sydney hospital with shortness of breath and some chest pain. It was sufficiently serious for them to conduct a CT scan, a chest X-ray, I should say, and the chest X-ray apparently showed some left upper lobe nodule problems. They weren’t reported to the patient indeed. She was discharged and told that she had no problems and she should follow up with her GP.

Now, some 18 months later, the cough and the chest problems returned and she did see her GP again at that stage, and when she had a chest CT at that stage, there was a significant size, soft tissue lesion, which on examination by the specialist was clearly present when she was discharged from that hospital 18 months earlier. Another good example is a client of mine who is in her late 30s and had never undergone any cervical screening tests such as a pap smear, and most of our listeners will know that there are protocols in place for screening by way of pap smears for women over a certain age, generally on five-year and then three-year intervals.

When she finally had some difficulties which led to her being sent for testing, it was found that she had a very serious problem and the biopsy found some high-grade squamous lesions, and she got some treatment initially, but some few years later, when she came and saw us, her diagnosis was that of a very serious cancer with a not great survival rate. So we have to give her what assistance we can to bring that case quickly.

Other types of matters is where people have scans or sigmoidoscopies or colonoscopies and what have you, and there’s no detection of any cancerous cells and it later finds out they were there at a point where they’re examined. Difficult cases, those ones. But these are the sorts of cases that we seem to confront, people have had some investigations done. They’ve later found out they’ve got very serious problems, and they’re asking the question, well, why wasn’t I told in an earlier stage when something could have been done about it.

Dan: Courtenay, practically speaking, what are some of the issues that arise in these types of delayed cancer cases?

Courtenay: Well, there’s two issues, Dan. The first is whether or not there was a breach, that is to say whether or not the cancer should have been detected, whether by way of pathology or radiology or whatever at the time. That’s generally not so difficult because scans can be reviewed and looked at and complaints of problems can be looked at, at a later stage. The real issues that arise in these cases and their major complex issues is working out what better outcome would have been achieved had the cancer been detected earlier.

This involves very difficult and complex issues, and they’re not ones that can be dealt with by lawyers. They need to be looked at by experts in the industry. I recently returned from London with four cancer cases. I talked to some of the world’s leading experts, and the inquiry we were making was not whether or not the cancer should have been found earlier, but they need to do what they call a back extrapolation of the cancer to work out well, if it’s at this certain size or has developed in this way now, what doing the best that I can, can we work out it would have been like when it should have been detected?

Now that comes to issues about whether surgery at that stage could have solved the problem completely. If there had been metastases of the cancer, for example, which had already taken place by the time that the cancer should have been detected, then the outcome may not be much different. So these are issues of what we, as lawyers, call causation, and they’re the complex ones, and they’re the one that take the time and takes all the involvement of the expert witnesses.

Dan: Courtenay, for people that are listening to this podcast that may have a concern about a delayed cancer diagnosis, what’s their next step?

Courtenay: Well, the next step is to come and see us, and then it’s a matter of getting together records and then with the experience we have in these matters over, or in my own case, for over 30 years, we know exactly where to look and where to go for experts. So we need to get a history, that history would include a chronology of their medical attendances over the years.

We gather together all of the medical records, which could include scans or like and then perhaps we have the scan looked at to see if it was properly reported and then the next step would be to look at their current position and treatment and look at what’s been done since the cancer was detected and then go to our expert oncologist to ask the question as to whether or not a better outcome could have been achieved. So with our expertise in this area, Dan, it’s really just a matter of gathering the facts together and then properly presenting a brief to an expert and we certainly know the experts, even internationally that are the best to assist our clients in these types of matters.

Dan: And at BPC, you offer a free no-obligation consultation?

Courtenay: Absolutely, and that extends to the investigations that are necessary. We’ll make a value judgment on our experience when we first see a client as to whether it’s a matter worth investigating, and I must say, in cancer-type cases, because of the seriousness of them, we’re reluctant to not investigate a case that’s got even only reasonable prospects because to the client, it’s a very important matter.

Dan: Courtenay, thanks for joining me.

Courtenay: Pleasure, dan.

Thank you for listening. If you have any questions, please call personal injury lawyers at BPC on 02 8280 6900.