21 October 2019

It is well known that with any form of cancer, early diagnosis is important. The commencement of early treatment is generally associated with better outcomes and prognosis.

reast cancer is sadly all too common. The latest statistics suggest that one in eight women will develop breast cancer at some point in their lives. The need to attend screening as well as the need to be aware of changes such as a lump or thickened breast tissue is well known, as is the importance of going to see the General Practitioner without delay in the event that any such changes have been noticed.

What is equally important is that the health care practitioners involved take the correct and prompt action when a patient presents with suspicious symptoms.

Unfortunately, there are occasions when the correct action is not taken swiftly by medical staff, losing the patient important time.

Diagnosis and Treatment

Diagnosis - Suspected Cancer Pathway Referrals

The National Institute for Health and Care Excellence (NICE) produces guidelines to clinicians on when to refer a patient for suspected breast cancer. These guidelines set a standard for acceptable management. The guidelines direct General Practitioners to make referrals to hospital on a “Suspected Cancer Pathway Referral” if;

  1. The patient is aged 30 and over and has an unexplained breast lump with or without pain, or
  2. The patient is aged 50 and over with certain symptoms including changes in the nipple or any other changes of concern.

On the suspected cancer pathway, a patient should receive a hospital appointment within two weeks.

Likewise, should suspicious findings be found on routine mammogram similar urgent referral should be made.

If a referral is not made at the crucial time the patient presents with symptoms, care may be assessed as being below standard.

Diagnosis - Hospital Management

On receipt of the referral, the hospital should schedule an appointment within two weeks. Again, NICE set out guidelines for pre-operative diagnosis and assessment.

Such diagnosis commonly follows a three stage approach involving examination of the patient, scans and biopsy (biopsy is the examination of a small sample of tissue taken from the affected area). All three aspects of the test are important and a decision as to the diagnosis is made based on the results of all three parts of the test.

Failure to adequately carry out the tests or to analyse the results properly may constitute below standard care.


NICE publish guidelines as to the appropriate management of particular types of breast cancer and of the particular stage that cancer has reached.

Breast cancer is often divided into these two types;

  • Non-invasive breast cancer - found in the ducts of the breast (it may be called ‘ductal carcinoma in situ’ or ‘DCIS’) and has not developed the ability to spread outside the breast. It is usually found during a mammogram and rarely shows as a breast lump.
  • Invasive breast cancer - usually develops in the cells that line the breast ducts (it may be called ‘invasive ductal breast cancer’) and is the most common type of breast cancer. It can spread outside the breast, although this does not necessarily mean it always has.

Again, if treatment does not take those distinctions into account and is not in line with recommended or accepted practice, the care may fall below the proper standard.

Legal Claims

If below-standard care or treatment has been provided and this can be linked to an adverse effect on the outcome and prognosis of the disease, there may be a case for a legal claim.

Bringing a successful claim is dependent on the claim passing two tests:

  1. Your treatment and care must be assessed as being below standard. “Below standard” means that the level of care provided to you was not at a level that would be accepted by a reasonable body of medical opinion.
  2. It must also be proven that this ‘below standard’ care has resulted in additional illness which would otherwise have been avoidable. It is necessary to show that the patient’s prognosis was adversely affected.

Claims are usually considered by independent medico-legal experts with significant experience in the treatment and management of breast cancer. They give their opinion as to whether the two tests have been met.

Our Service

Here at Battens, we have experience in managing claims in connection with the poor diagnosis and treatment of breast cancer. Using experienced medico-legal experts and barristers, we can analyse your case and provide appropriate advice and assistance to pursue a legal claim.

Paying for your claim

There are a number of different options for you to fund your legal claim.

We may be able to utilise pre-existing Legal Expenses Insurance if you have it.

Many cases are suitable for ‘No Win No Fee ‘arrangements. We may combine this with insurance to cover the cost of expert medico-legal reports. However, not all cases are suitable for this method of funding. You may therefore decide to instruct us under a private retainer at a fee agreed in advance.

Contact us

If you are concerned that your diagnosis or treatment has fallen below standard in any way, please do contact Peter Livingstone on 01935 846131 or for advice in connection with bringing a legal claim.

You can do this if you have any such concern in connection with your own treatment or that of a loved one. Do contact us as soon as possible, to ensure that time limits do not become an obstacle to prevent the pursuance of a claim. Claims must be brought to the Court within 3 years of the below standard treatment or of the first awareness that the treatment was below standard. However, pre-action steps should be taken as early as possible and within that 3 year period.

At Battens we appreciate that dealing with a legal claim which challenges the actions of your treating clinician can be upsetting, particularly while you are still undergoing treatment. We will deal with your case in a sensitive and sympathetic manner, at your pace but with an eye on potential time limits.