Claim settled for breast cancer patient who was misinformed about the type of cancer she had developed

We have advised on a claim against Frimley Health NHS Foundation Trust for a mother of two teenage daughters who, during her diagnosis for breast cancer, was wrongly told that she did not have the inherited form of the disease.

Our client was originally diagnosed with breast cancer in 2009. She was referred to Frimley Park Hospital where her cancer was appropriately treated. Our client was particularly concerned about the type of breast cancer she had developed as several close family members had suffered from an inherited form of breast cancer (known as oestrogen receptor positive breast cancer.) She realised that, if it turned out that she was suffering from an inherited form of the disease, she would need to tell her daughters that they might also be at risk.

Our client was told that the result of a biopsy showed that she did not have the inherited form of the disease. She was enormously relieved by this news, not least because she now felt able to spare her daughters the anxiety of living with their own future risk. Our client went ahead and gave her daughters a comprehensive response to their questions, reassuring them that they did not need to worry – something she would never have done had she been properly informed.

Sadly, in April 2014, the cancer returned. Our client was told that, when laboratory staff had gone back to recheck her original cancer sample from 2009, they had discovered that her cancer was, in fact, oestrogen receptor positive. From the records it is clear that Frimley Health NHS Foundation Trust followed the appropriate procedure once the error had been discovered but the news that her cancer was, in fact, the inherited form, was truly devastating for our client.

Our client told us that, had she known, in 2009, she had the inherited form of the disease, she would have managed the years after 2009 very differently, both emotionally and in terms of her job (she had continued to work full time.) Our client suffered particular emotional distress because the error meant she had misled her daughters and she would now need to find a way to break the news that they were, in fact, at risk. She told us she found the prospect of this task more difficult than the knowledge that her disease was now terminal.

We approached NHS Resolution with a view to negotiating settlement on the basis that our client had suffered injury in the tort of negligence and the tort of negligent mis-statement as a result of which she had suffered psychological injury. NHS Resolution dealt with the claim sympathetically and swiftly, offering a settlement which reflected the extent of the psychological injury suffered by our client.

Our client felt strongly that, in bringing her claim, she wanted to raise awareness of what had happened to her to ensure that this type of error did not happen to anyone else. The claim was funded under a conditional fee agreement and was settled without the need to issue court proceedings.

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