Speaking in the House of Commons on 2 May 2018, Health Secretary Jeremy Hunt announced that, between 2009 and 2018, due to a “computer algorithm failure”, 450,000 women in England between the ages of 68 and 71 failed to receive invitations for a final routine breast cancer screen. Mr Hunt told the Commons that computer modelling suggested between 135 and 270 women may have had their lives shortened. Apparently, all women affected will be contacted by letter by the end of May 2018. Those still under the age of 72 will receive an appointment for a final scan. Those over the age of 72 will be advised as to whether or not a final scan would be beneficial due to the risk of scans in older women showing false positive results.
Chief Executive of Breast Cancer Now, Baroness Delyth Morgan, described the omissions as a “colossal administrative disaster” and reminded that early diagnosis of any cancer, but particularly breast cancer, is “absolutely essential”.
Mr Hunt has said that a process will be set up to establish if any of the missed scans were the likely cause of death in any cases, and therefore whether compensation should be paid.
What is clear is that compensation will not be paid as a matter of course to either those women affected or their next of kin if they have passed away. Well established principles of clinical negligence law tell us that compensation is only payable to a claimant who can prove (by independent expert evidence), that a proven or admitted error in relation to their care actually caused an outcome worse than would have been suffered in any event. Proving causation or exacerbation of disease in late diagnosis of cancer cases is notoriously difficult. It is necessary in most cases for an expert oncologist to consider both scans and histopathology from the tumour eventually diagnosed, to determine the growth rate and therefore the likely size and classification at any variety of specified previous dates.
It is yet to be seen what sort of “process” will be established to assess payment of compensation. It is however important that the public is not misled as to the burden upon possible claimants in terms of what they will have to prove in order to receive such a payment and, indeed, the time, stress and financial outlay involved in doing so. It is important during such an upsetting time to receive sympathetic, but also objective, legal advice delivered in a clear and caring manner.