Cancer screening is meant to find changes early, before symptoms appear. When a mammogram is misread, a cervical screening sample is wrongly reported or an abnormal bowel screening result is not followed up, the chance to treat a cancer at an earlier stage can be lost. If that has happened to you or a relative, our medical negligence team can help you understand whether there is a claim.
Screening errors raise particular questions. No screening test detects every cancer, and a cancer found between routine screens does not automatically mean anyone was at fault. The legal question is whether the screening, reporting or follow-up fell below a reasonable standard and whether that caused avoidable harm. Our cancer misdiagnosis claims page explains our wider work in this area.
Cancer screening programmes in England
The NHS runs three national cancer screening programmes in England.
Breast screening. Women aged 50 up to their 71st birthday are invited for a mammogram, an X-ray of the breasts [1]. The images are examined by trained readers, and anyone with an abnormal result is recalled for further assessment.
Bowel cancer screening. People aged 50 to 74 are sent a home test kit every two years [2]. The faecal immunochemical test (FIT) checks a stool sample for tiny amounts of blood. People with an abnormal result are offered a colonoscopy.
Cervical screening. Women and people with a cervix aged 25 to 64 are invited every five years [3]. The sample is first tested for high-risk human papillomavirus (HPV). If HPV is found, a cytology test checks the sample for abnormal cells [3].
Each programme works to national quality standards, and screening is not a diagnostic test for people who already have symptoms. If you notice a symptom between screens, see your GP rather than waiting for your next invitation.
How screening errors can happen
Errors can occur at several stages, and each needs to be examined separately.
- Reading and reporting. A mammogram may show an abnormality that was not identified, or a cervical cytology sample may contain abnormal cells that were reported as normal.
- Laboratory and processing errors. A FIT kit or cervical sample may be mislabelled, lost, wrongly processed or matched to the wrong patient.
- Failures to act on results. An abnormal result may not be communicated, a recall appointment may not be booked, or a referral for colonoscopy or colposcopy may be delayed.
- Administrative failures. A person may not be invited when they should have been, or may be wrongly removed from a screening list.
- Follow-up investigations. A colonoscopy or colposcopy may miss an abnormality that should have been seen, or a biopsy result may not be acted on.
Some failures, such as an abnormal result that was never sent to the patient, may be relatively clear on the records. Others, such as whether a subtle change on a mammogram should have been recognised, depend heavily on expert evidence.
What must be proved in a screening error claim?
A claim usually needs to establish two points: breach of duty and causation.
Was the screening below a reasonable standard?
The standard is that of a reasonably competent professional in the same field. The care must be supported by a responsible body of professional opinion, and that opinion must stand up to logical analysis [4]. In screening cases, the court may first decide as a matter of fact what was visible on the image or slide, and then whether a reasonably competent screener could have reported it as normal [5].
A screening reader is not expected to be infallible. Some abnormalities are genuinely very hard to see, and two competent readers may reasonably reach different views on a borderline image. Independent experts in the relevant field, such as breast radiology, cytopathology or gastroenterology, will usually need to review the original images, samples or reports.
Did the error cause avoidable harm?
This is often the most difficult part of the case. It must be shown, on the balance of probabilities (more likely than not), that the error made a real difference to what happened.
That might mean the cancer was diagnosed at a later stage, more extensive surgery was needed, treatment such as chemotherapy or radiotherapy became necessary, or the prognosis was worse. In England, the law does not usually compensate a reduced chance of a better outcome on its own. The evidence generally needs to show that, without the error, the outcome would probably have been better [6]. This can be complex where the cancer would have been treatable at either point, or where the prognosis was already poor.
How a screening error claim works
A solicitor will usually start with a detailed account of your screening history, symptoms and diagnosis, then obtain your GP records, screening records and hospital records. Where possible, the original mammogram images, cytology slides or laboratory records are requested so independent experts can review them.
If the evidence supports a claim, a formal Letter of Claim is sent under the Pre-Action Protocol for the Resolution of Clinical Disputes, and the other side normally has four months to respond [7]. Screening services in England are generally provided by NHS bodies, so claims are usually handled by NHS Resolution under the Clinical Negligence Scheme for Trusts [8]. The response may admit or deny liability. Many claims settle through negotiation, but some need court proceedings.
Compensation is assessed on the medical evidence and can include pain, suffering and loss of amenity, together with financial losses such as care, travel, treatment costs and lost earnings. The Judicial College Guidelines are commonly used as one reference point [9], but each claim depends on its own facts.
Time limits
In most clinical negligence claims, court proceedings must be started within three years of the negligence or of the date you first knew that a significant injury may have been caused by it [10]. With screening errors, people often only learn that an earlier result was misread after a later diagnosis or a screening audit, so the date of knowledge needs careful assessment.
For children, the three-year period normally begins at 18, and different rules apply where a person lacks the mental capacity to conduct proceedings [11]. Where someone has died, separate time limits apply to claims by their estate and dependants [12]. The court has a limited discretion to extend time [13], but you should not rely on it. Read more about medical negligence time limits.
Making an NHS complaint
You can complain to the screening provider or to NHS England if you want an explanation of what went wrong. NHS complaints should normally be made within 12 months of the event, or of when you became aware of it [14] [15]. A complaint is not required before a legal claim and does not pause the limitation period. An apology made in response to a complaint is not in itself an admission of negligence [16].
Frequently asked questions
I was told my screening was normal, but I was diagnosed with cancer soon after. Is that negligence?
Not necessarily. Screening does not detect every cancer, and some cancers develop or become visible between screens. A claim depends on expert evidence that the abnormality should reasonably have been identified, and that earlier detection would probably have led to a better outcome.
Can I claim if I was never invited for screening?
Possibly. If you were eligible but not invited because of an administrative or systems failure, and that probably caused a later diagnosis and worse outcome, a claim may be possible. The records of invitations and your GP registration will be important.
My FIT result was abnormal but my colonoscopy was delayed. Can I claim?
It may be possible if the delay was unreasonable and the evidence shows it probably affected your treatment or outcome. The dates of the result, the referral and the colonoscopy will be central.
Can I see the original mammogram images or slides?
Your solicitor can request your records, including screening images and reports, so that independent experts can review them. Where slides or samples have been retained, these can also be requested.
Can I claim on behalf of a relative who has died?
Potentially. The estate and certain dependants may be able to bring a claim [12]. Prompt advice is sensible because time limits can apply differently after a death.
If you are concerned that a screening result was missed or misread, a careful review of the records can establish what happened and whether it made a difference.
For a free, confidential assessment call 0333 777 5001.
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Sources
- NHS England (GOV.UK), Breast screening programme overview: https://www.gov.uk/guidance/breast-screening-programme-overview
- NHS England (GOV.UK), Bowel cancer screening programme overview: https://www.gov.uk/guidance/bowel-cancer-screening-programme-overview
- NHS England (GOV.UK), Cervical screening programme overview: https://www.gov.uk/guidance/cervical-screening-programme-overview
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Bolitho v City and Hackney Health Authority [1997] UKHL 46: https://www.bailii.org/uk/cases/UKHL/1997/46.html
- Penney, Palmer and Cannon v East Kent Health Authority [2000] Lloyd’s Rep Med 41 (Court of Appeal).
- Gregg v Scott [2005] UKHL 2: https://www.bailii.org/uk/cases/UKHL/2005/2.html
- Pre-Action Protocol for the Resolution of Clinical Disputes: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_rcd
- NHS Resolution, Clinical Negligence Scheme for Trusts: https://resolution.nhs.uk/services/claims-management/clinical-schemes/clinical-negligence-scheme-for-trusts/
- Judicial College, Guidelines for the Assessment of General Damages in Personal Injury Cases (current edition, Oxford University Press).
- Limitation Act 1980, sections 11 and 14: https://www.legislation.gov.uk/ukpga/1980/58/section/11 and https://www.legislation.gov.uk/ukpga/1980/58/section/14
- Limitation Act 1980, section 28: https://www.legislation.gov.uk/ukpga/1980/58/section/28
- Limitation Act 1980, section 12; Fatal Accidents Act 1976, section 1; Law Reform (Miscellaneous Provisions) Act 1934, section 1: https://www.legislation.gov.uk/ukpga/1980/58/section/12, https://www.legislation.gov.uk/ukpga/1976/30/section/1 and https://www.legislation.gov.uk/ukpga/Geo5/24-25/41/section/1
- Limitation Act 1980, section 33: https://www.legislation.gov.uk/ukpga/1980/58/section/33
- Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, regulation 12: https://www.legislation.gov.uk/uksi/2009/309/regulation/12
- NHS England, Making a complaint: https://www.england.nhs.uk/contact-us/feedback-and-complaints/complaint/
- Compensation Act 2006, section 2: https://www.legislation.gov.uk/ukpga/2006/29/section/2
