Substantial settlement for anal cancer patient following negligent surgery and other failings

We have settled a claim for a client against Frimley Health NHS Foundation Trust following a delay in diagnosing her anal cancer.

In 2012 she presented to her doctor with a one month history of aching in her lower abdomen and following a scan she was noted to have a cyst. She was referred to a gynaecologist and, after a biopsy, a decision was taken to perform a hysteroscopy, a procedure to examine the inside of the womb.

Non-malignant polyps were found during the hysteroscopy and so an MRI scan was arranged to assess the cyst. Two masses were noted on the scan so it was decided that she needed surgery to remove and test both masses, in order to exclude the possibility of cancer.

Our client had surgery but only one of the masses was removed and tested - this was found not to be cancerous. An ultrasound scan a few months later showed that the mass, which had not been removed, had grown in size. Despite this, our client was discharged and told she required no further treatment.

In 2015 she noticed rectal bleeding, together with a painful groin lump. An ultrasound scan identified the pre-existing mass in her groin but no further investigations or follow-up were arranged.

Approximately nine months later, our client attended A&E due to significant abdominal pain and further rectal bleeding. Investigations confirmed she had a locally advanced anal cancer, which involved the vaginal wall. She required chemotherapy, and due to her significant bowel symptoms, she required colostomy surgery. This is where part of the bowel is diverted through an opening in the tummy and a pouch known as a stoma bag is placed over the opening to collect the stools. Whilst some colostomies can be reversed, due to our client’s age, this was not possible and she therefore requires a stoma for the rest of her life.

We were instructed and having obtained supportive expert evidence from a gynaecologist and an oncologist, we sent the hospital trust a Letter of Claim setting out our allegations of negligence. The primary allegation was that it was negligent not to explore both masses during the 2012 surgery so that they could be tested for malignancy, but we also alleged that it was negligent not to take any further action when the remaining mass was noted to have grown in size, including the decision to discharge the client with no further follow-up. Had the second lesion been explored and tested and/or been investigated once it had grown, it would have shown malignancy and whilst our client would always have required the same amount of chemotherapy, she would not have needed colostomy surgery.

Despite the late diagnosis of our client’s anal cancer, our oncology expert confirmed that her long-term prognosis had not been affected by the delay. However, due to her need for the colostomy (which would have been avoided with appropriate care), our surgical expert confirmed that she was at an increased risk of developing a hernia, which could progress and strangle the bowel. During the case, this complication did sadly happen and our client required emergency hernia surgery and she was very poorly.

The hospital trust responded to our allegations and whilst it was denied that both of the masses should have been explored during the 2012 surgery, it was admitted that once the remaining mass was noted to have grown, a biopsy should have been taken and follow-up arranged. A number of months later the hospital trust also confirmed that it was accepted that appropriate treatment would have resulted in an earlier anal cancer diagnosis and whilst the delay did not impact the level of chemotherapy treatment she required for the cancer, it did result in the need for a colostomy which would otherwise have been avoided.

The hospital trust apologised to our client and settlement negotiations commenced but, as mentioned above, during the case our client became very unwell and so the case could not be settled until her prognosis was known.

A settlement of £145,000 was subsequently agreed and although this was reached without the need to issue court proceedings, court approval was required for the settlement as our client lacked capacity due to dementia. In any case where the client is found to lack capacity, for example a child or an adult with a condition which impairs their ability to make decisions, court approval is required to ensure the settlement figure is appropriate.

Associate Emily Hartland, who advised on the negligence claim, comments: “This case is an interesting one as it shows that even when a delay in diagnosis does not necessarily impact the cancer treatment or the client’s long-term prognosis from a cancer perspective, a delay in diagnosis can still have other significant implications. It is therefore always worth obtaining some initial advice if you think there has been a delay in diagnosis of any type of cancer. Whilst no amount of compensation can ever make up for what our client has been through, and the fact that she will continue to need a stoma bag for the rest of her life, she can now use the compensation to obtain care and assistance. Should she develop further complications, she will have the funds available to pay for private treatment to ensure there are no further delays in her care.”

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