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Will breast cancer screening error lead to multi-party action against NHS?

A health scare at two Manchester hospitals involving incorrect breast cancer screening results is believed to have affected nearly 2,500 women. Julia Bridges, partner at Linder Myers, tells Elizabeth Davidson how this could potentially lead to a multi-party clinical negligence action...

According to press reports, nearly 2,500 women have been given incorrect breast cancer screening results at two Manchester hospitals.

The hospital error involves tests on 1,267 women who were tested at Trafford General Hospital between April 2003 and April 2005, and 1,195 who were tested in the same period at the North Manchester General hospital.

Trafford Healthcare NHS Trust has suspended a staff member who undertook the tests, and the hospitals are urgently reviewing the breast scan results of the women involved. Both hospitals are contacting all the women thought to be affected by the potential error in the screening process.

How likely is it that these women could bring a claim in law against the NHS Trusts involved, and what would it be based on?

The error could potentially lead to a class action brought against the NHS Trusts responsible, Trafford Healthcare NHS Trust and Pennine Acute Hospitals NHS Trust, says Linder Myers clinical negligence partner, Julia Bridges.

Bridges says the women could potentially claim for “damages in respect of personal injury and consequential loss resulting from negligent medical treatment, for example, if there has been an unreasonable delay in diagnosis and treatment of breast cancer and the delay has resulted in injury or loss such as necessitating a mastectomy instead of a lumpectomy”. The claim, she says, “may include compensation in respect of the more extensive operation, greater recovery time, reconstructive surgery, psychological damage as well as things like increased loss of earnings and damages to reflect a decreased life expectancy”.

This could take the form of a multiparty action (MPA), says Bridges. “An MPA is a claim in which a number of people have causes of action which involve common issues of fact or law arising out of the same cause or event,” she says. “Therefore there is potential for this to be an MPA.”

Around one in nine of all women will be diagnosed with breast cancer at some stage in their lives. Obviously, it is hoped that none of these women will suffer ill health as a result of the incorrect screening. However, could women who remain clear of symptoms still bring a claim, and if so, what would it be based on?

Bridges says: “Women would only have a claim for damages if they have suffered injury as a result of delayed diagnosis and treatment—it is not enough to prove negligent treatment alone. It must have caused injury to result in compensation. Women referred by their GPs for tests would probably have exhibited symptoms leading to the referral. They would have a claim if they could show that there had been an unreasonable failure to make a diagnosis, such that fell below a reasonable standard of care which would be accepted by a responsible body of medical opinion.”

Funding is a key factor in any class action, and has previously led to the collapse of some MPAs. Bridges says the most likely funding scenario in this particular situation is “a mixture of conditional fee agreements, Community Legal Service funding (legal aid) and possibly legal expense insurance, subject to the financial circumstances of the individuals concerned and risk assessments based on the circumstances of their individual cases”. How long such an action might take is dependent on a number of factors including the approach taken by the defendants and the number of claimants involved, she adds.

(14/06/05)

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