COVID 19 and Cancer Services? Litigation Hotspot

By Dr Stephen Falk, Consultant Clinical Oncologist

As we return to a more normal life with a successful vaccination programme our thoughts now start to turn to what damage will have been done to medical care for other conditions. Clearly individuals will have been disadvantaged the question is will this turn into successful litigation?

Oncologists are worried because care changed dramatically. Some 44,000 fewer patients started treatment with cancer between April 2020 in January 2021. In the first wave we saw data from Italy and China which suggested significantly increased mortality for patients receiving chemotherapy who caught the COVID 19 virus whilst on treatment. Whilst we now know the risks are probably not actually that bad in UK patients, virtually all of us significantly reduced the number of in particular palliative treatments that were being given and indeed increased our threshold for giving post-operative adjuvant therapies to those where the risk reduction of recurrence with treatment was greatest. It is these patients who are most likely to have suffered detriment as a result. For a patient who suffers detriment litigation seems obvious

However, the test for medical litigation is not ‘best care’ but that of a responsible body of oncologists. A whole raft of guidelines was quickly cobbled together at the beginning of the pandemic and widely published and indeed adhered to in UK practice. Therefore, if the care given, even if not what we would like to have done in hindsight, was that widely practised by our colleagues, litigation will in my view rightly fail.

The second area of concern which yields much more medico-legal work than ‘perceived oncologists failings’ is delay in diagnosis.

Between March 2020 in January 2021 there was an overall 16% drop in two-week wait suspected cancer referrals. Some estimates believe there are still 350,000 missed cancer patients. Certain areas are particularly problematic for example lung cancer where referrals fell by 34%. This will almost certainly translate into reduced survival rates within the UK. This is mirrored by a 50% fall in chest x-rays undertaken, because of course, we were told that if we had a cough, we must stay away from the GP surgery and hospital. Gastro-intestinal Endoscopy just about stopped for a few weeks and was slowly re-introduced but even now in April 2021 capacity remains an issue.

Again, if care followed that of a responsible body it will be defendable.

In summary most COVID specific related cases are likely to be defensible in my view as an oncologist. There remains no excuse for low quality care out with expected practice at any time. As we recover this is an important message for us all, in particular as we learn to look after more patients remotely and have to develop a new clinical skill set to replace the end of the ‘bedometer’

About the Author:

Dr Stephen Falk is Consultant Oncologist and undertakes medico-legal reporting. Dr Falk qualified from Liverpool University in 1983 and spent a period in Liverpool undertaking a general medical rotation. He then trained in oncology in Cardiff and Cambridge becoming a consultant in Bristol in 1994. He has sessional commitments to Southmead Hospital Bristol.

His areas of specialist interest are: gastro-intestinal cancer (oesophagus, stomach, pancreas, colorectal, hepatobiliary), lung cancer, lymphomas and skin cancers, radiotherapy and chemotherapy.

Dr Falk can be contacted for all medico-legal work and to request his CV at

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