The BBC recently reported that around 755,000 women’s health appointments are waiting to happen in the UK, with the waitlist for ‘‘gynaecological appointments having more than doubled since 2020’’. Scotland, like many other parts of the UK, is not immune to these challenges with many women struggling to get appointments or diagnosis. Delay in diagnosis and misdiagnosis of health conditions can have serious repercussions for women's health and well-being and indeed in certain circumstances may give rise to a clinical negligence claim.
There are numerous examples which have been highlighted recently where women’s health conditions, such as endometriosis, polycystic ovary syndrome (PCOS) and cancer, are being underdiagnosed or misdiagnosed. Celebrities have discussed personal experiences such as Vicky Pattison who faced a lengthy wait for a diagnosis of premenstrual dysphoric disorder (PMDD), and Naga Munchetty whose seemingly routine appointment to have a contraceptive coil fitted turned into ‘‘one of the most traumatic physical experiences.’’
A recent investigation found that women in Scotland with symptoms of ovarian cancer were being dismissed, leading to significant delays in diagnosis. This was further evidenced by a report published by the Scottish Government, which found that around ‘58% of women in Scotland visited their GP 10 or more times before being diagnosed’ [3]. The All-Party Parliamentary Group inquiry (APPG) found that despite the chronic condition, endometriosis affecting around 1.5 million women in the UK, and an estimated one in ten women in Scotland that it takes around 8.5 years on average from initial symptoms for women in Scotland to be diagnosed [4]. Meanwhile the British Heart foundation revealed that women have 50% higher chance of receiving the wrong initial diagnosis following heart attack, with women being misdiagnosed with things such as ‘anxiety’ [5]. Such delays can result in worsened health outcomes, for instance if cancer has spread to other parts of the body or a lower chance of survival.
In some cases these delays or misdiagnoses may well result in a successful claim for clinical negligence. It is important to seek advice from a specialist clinical negligence solicitor to obtain advice on whether you have a potential claim.
In considering whether a claim for clinical negligence may be made, a three part test is applied to the treatment in question. The test in Scotland is set out in the case of Hunter v Hanley [1955] SC 200. To succeed in a claim the pursuer requires to establish:
- that there is a usual and normal practice;
- that the medical professional has not adopted that practice; and
- that the course the medical profoessional adopted is one which no professional person of ordinary skill would have taken if he or she had been acting with ordinary care.
Another case relevant to breach of duty relates to patients giving informed consent. In the leading case of Montgomery –v- Lanarkshire Health Board (2015) it was said that an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor or other member of medical staff is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.
If the treatment falls below the standard of care in line with the tests set out above then the pursuer must also then establish ‘causation.’ This means proving that the failures led to the injury and losses, whether that be a period of pain and suffering or poorer prognosis. Having established both breach of duty and causation the pursuer then must go on to prove the value of these losses.
Given the complex nature of these claims, it is important to seek advice from a specialist in clinical negligence claims. Our Clinical Negligence experts at Thorntons Law LLP have a proven track record in winning medical negligence claims and securing strong results for clients who have suffered injury as a result of failures in their treatment.
If you have any questions about making a personal injury claim, please contact our specialist Personal Injury team on 0800 731 8434.
