Widow Awarded Compensation for the Failure to Diagnose Colon Cancer

Posted on: April 9th, 2015 by Editor

A widow has been awarded compensation for the failure to diagnose colon cancer after a nine-year legal battle against the NHS.

David O´Reilly died in November 2006 at the age of fifty-five after battling against metastatic colorectal cancer for three years. He left a widow – Sue – and three children, one of which was severely disabled due to being born with cerebral palsy.

Two years before David was diagnosed with cancer, he had undergone an endoscopy at the hospital close to where the family lived in Chichester, Sussex. His consultant failed to notice a lesion in his colon and, when David sought a second medical opinion, he was misdiagnosed with irritable bowel syndrome.

Following David´s death, Sue made a claim for compensation for the failure to diagnose colon cancer against the Western Sussex Hospitals NHS Foundation Trust; claiming that a correct diagnosis in 2001 would have allowed David to receive treatment at an earlier stage of the cancer, and that he would have survived much longer.

In order to get support with caring for son, Sue moved back to her family´s home in Australia. From there she applied for the claim for compensation for the failure to diagnose colon cancer to be heard in New South Wales. The NHS Trust objected due to the cost of travelling to Australia to defend the case; but, in 2010, the New South Wales Supreme Court agreed to Sue´s application.

Sadly, within a year of the case getting underway, Sue´s son died due to complications related to his cerebral palsy. The judge hearing the case – Mr Justice Peter Garling – agreed to a request from the NHS to transfer the case to the UK, where it would be more cost-effective to hear testimony from witnesses located in London.

The Royal Court of Justice appointed Judge Garling as a temporary examiner so that he could continue to hear the case and, earlier this year, he found that the Western Sussex Hospitals NHS Foundation Trust had breached of its duty of care and awarded Sue £91,300 compensation for the failure to diagnose colon cancer.

Despite Sue´s parallel claim for emotional distress being dismissed (on the basis that David would have lived just a few years had his condition been correctly identified earlier), she had a bigger concern relating to the costs of bring the claim. The NHS Trust argued that it should not be liable for the full amount of costs as they were disproportionately high in relation to the award of compensation.

The cost of pursuing the claim for compensation for the failure to diagnose colon cancer had run into millions in the nine years since David´s death. The NHS Trust entered a motion that it should only be liable for 25% of Sue´s legal fees – a motion, which if agreed to, would have bankrupted the widow.  Fortunately Judge Garling dismissed the NHS Trust´s motion and awarded Sue the full amount of her legal costs.

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