Medico-legal aspects of delay in breast cancer diagnosis: the legal perspective

In English law, there is no strict liability in relation to the failure of a doctor to diagnose breast cancer, but, in order for a Claimant to succeed, it is necessary for her to prove negligence. The courts apply what is known as the 'Bolam' test in deciding whether a doctor has been negligent, as modified in Bolitho v City and Hackney Health Authority. Example: Adekanmbi (deceased) v Allinson (2004).

Where there has been a delay in diagnosis of breast cancer, the challenge is often in relation to causation, showing what the outcome would have been if the diagnosis had been made when it ought to have been. English law does not recognise loss of a chance in personal injury actions and causation is decided on the balance of probabilities (Gregg v Scott). Where a woman dies of breast cancer after a negligent delay in diagnosis, the question is whether she would have survived had the diagnosis been made. This may depend on the appropriate staging of the carcinoma at the relevant time, again decided on the balance of probabilities. Alternatively, the claim may be that earlier diagnosis would have avoided chemotherapy, or the cosmetic outcome would have been better. Example: K v Dr B (2005).