The NHS is facing what doctors fear is “a legal storm” of claims for compensation from patients who could not get cancer treatment during the pandemic.
Leading cancer surgeons are warning that patients who could not have surgery at the planned time, or a scan, or see their GP because of Covid-related disruption to services may sue if their cancer subsequently spread.
“I’m very concerned that patients will pursue legal action as a result of delays to them receiving cancer treatment during the pandemic,” said Prof Neil Mortensen, the president of the Royal College of Surgeons.
Many NHS trusts postponed even urgent cancer surgery during the recent second wave after running out of intensive care beds for patients to recover in because wards were full of people with Covid-19.
Prof Gary Middleton, a cancer surgeon in the West Midlands, said: “We don’t know the scale yet. But I think the likelihood is enormously high that potentially we’re sitting on a legal minefield with this. I think there’s going to be a huge amount of this.
“I’ve heard many stories where somebody has gone fully prepped in the morning for surgery, starved [themselves] from midnight and then been sent home. On one Monday alone, three people I knew had their parents or relatives actually turned back, two for breast cancer surgery and one for bowel cancer surgery. And inevitably, if the patient [their cancer] progresses, well, what would anybody do?”
Middleton, who is also a professor of medical oncology at Birmingham University, told a webinar hosted by the Royal Society of Medicine: “We’ve already seen complaint letters coming through [from] very angry patients that have been delayed on their surgery. We are physicians and physicians’ first [rule] is ‘do no harm’. I do think potentially it could be bad news.”
Peter Walsh, chief executive of the patient safety charity Action against Medical Accidents, said his organisation knew of several patients or relatives of people who had died who were considering a lawsuit because they believe that delays in care led to cancer spreading.
In one case a man claims that his chemotherapy for prostate cancer was stopped halfway through because Covid had disrupted normal care at a hospital in Yorkshire. “The man feels he now has been given a death sentence due to the lack of treatment for the last three months,” said Walsh.
In another, the daughter of a woman who died of lung cancer that she claims spread because of delays in diagnosis plans to sue. She says that the NHS took four months to correctly identify her mother’s disease when she first sought help last March, when she had trouble breathing. She was initially told she had pneumonia and by the time her disease was diagnosed it had spread and she died soon after, the woman says.
“Tragically, thousands of cancer patients and also patients with other conditions will have died or suffered life-changing avoidable harm as a result of the disruption, potentially on a scale similar to those from Covid-19 itself,” said Walsh, who urged ministers to acknowledge the harm involved.
However, Walsh said: “Fears of a deluge of claims are probably overstated.” Families are more likely to sue if the hospital involved fails to be open and honest with them about the delays and what led to their loved one’s death, he added.
Mortensen told the webinar: “I’m frightened that the medico-legal storm will take away the money that we might otherwise have invested in [boosting cancer surgery] capacity.” Surgeons say the NHS needs more operating theatres and endoscopy suites to provide speedier care.
The NHS could introduce a form of no-fault compensation to deal with lawsuits sparked by delays in cancer care “because we don’t want the lawyers to make all the money out of it,” he suggested.
Hospitals continued with as much cancer surgery as they could, and private hospitals operated on many of the most urgent cases, he stressed. But even with that, “there will be a minority of patients who have fallen through the net”.
“A bigger problem is going to be late diagnosis, due in part to delays in access to GPs and diagnostics, but also as an effect of patients putting off seeing their doctors during lockdown,” Mortensen said. “These will be the patients who are most likely to have more advanced cancers and adverse outcomes. Some may resort to legal action.”
An NHS England spokesperson said: “Cancer services have remained open throughout the pandemic and we have continued to remind people it is safe to come forward for checks and treatment with hospitals carrying out more than two cancer treatments for every patient they treated for Covid-19.”