Kym Provan, partner in our Southampton medical negligence team, has recently settled a claim for the family of Alex* who tragically lost his life in 2019 to malignant melanoma. Alex had a particularly unusual form of melanoma, called a subungual melanoma, which forms under the nail.
Alex’s story
From late 2016, Alex began suffering from problems with one of his big toes. It was very painful, swollen and hot, with watery discharge. His GP suspected infection, but antibiotics failed to improve his symptoms, leading to a podiatry referral for suspected ingrown toenail and infection. The podiatrist removed the nail side, but the wound didn’t heal, and Alex’s pain and swelling were unusually severe.
In 2017, Alex had further treatment to remove a spicule of nail. This still failed to resolve the persistent pain (especially at the tip), swelling and weeping, despite multiple courses of antibiotics. Records noted toe skin discoloration away from the surgical area and nail splitting, but this was not followed up by a dermatology referral or biopsy request.
With symptoms not getting any better, in late summer 2017, the podiatrists referred Alex on to the podiatric surgeons team within the same NHS Trust in the South East of England. The surgeons also treated Alex’s condition as an ingrown toenail. By October 2017, there was mention of a possible biopsy, but no referral was ultimately made.
Alex’s problems with his toe were so significant that he was unable to wear closed in shoes for long periods of time. This impacted his ability to dress appropriately for work, and to drive. Although he did manage to continue working to support his family, by the end of the working day, the pain limited his ability to help with housework, ferry around his children to their various social events and activities or care for the family dog. This increased his wife’s responsibilities alongside her full-time job.
After a combination of different antibiotics, Alex did experience a short period of some relief, but the wound on his toe never fully healed and he continued to be in pain and have difficulty walking. By May 2018, Alex’s condition had worsened to the point that he returned to his GP, who again referred him on to podiatry. Despite being given more antibiotics for suspected infection, the wound continued weeping and bleeding, with clear toe tip discoloration and skin overgrowth. The podiatrists finally referred Alex for a biopsy of the skin around the nail, by which time a large wart-like lesion had developed.
Diagnosis and treatment of subungual melanoma
Sadly, but perhaps not surprisingly, the biopsy came back showing that Alex had malignant nail melanoma (subungual melanoma).
Initially, the hope was that the melanoma might be contained to the toe and an amputation was planned. However, it soon became clear that the melanoma had spread to the lymph nodes, and as well as the amputation of the entire big toe in December 2018, Alex had to have lymph node clearance in January 2018. Alex was advised that he had Stage 3 malignant melanoma and that there was a chance it could return. He was due to have follow up treatment to eradicate any remaining cancer cells, but there was a further delay in him being seen by a consultant oncologist.
Despite this, Alex and his wife were optimistic. Alex had secured a new senior management role. He had been upfront about his condition and his new employers were still keen to offer him the position. Alex had a successful track record of similar senior positions and was well known in his industry.
In March 2019, Alex began to experience increased back pain. In early April 2019, Alex was finally seen by a clinical oncologist, who wanted further tests before any treatment was commenced, due to the length of time that had passed since Alex’s last scan.
Less than two weeks later, Alex suffered a bleed on the brain (stroke) and investigations showed that the cancer had spread to his spine, brain and other organs. He was advised that his condition was terminal, but he was keen to fight the disease as hard as he could and wanted immunotherapy and any other available treatment.
Tragically by the time Alex was referred for immunotherapy, it was too late to make any difference. Alex moved to a hospice in May 2019 and died in June 2019.
How we helped Alex and his family in the cancer compensation claim
Shortly before his death, Alex and his wife contacted Kym Provan and asked for her help to investigate why Alex had not been diagnosed sooner, and whether this could have essentially saved or prolonged his life. Kym visited Alex in the hospice, and he was clear that his primary purpose of instructing a solicitor was to provide for his family as best he could, in the way that he would have done had he been there.
Alex’s medical records clearly showed that Alex had visited his GP, podiatry services and the podiatric surgery department on numerous occasions over the 2 ½ years prior to his death. The difficulty was going to be understanding when it was no longer reasonable for those treating Alex, to assume that his problems were caused by an ingrowing toenail, and the difference that referral and correct diagnosis would have made at that time.
Fortunately, Alex and his family had taken several photographs of the toenail from May 2017 onwards. In addition, the different medical professionals involved in his care during this time had also done the same. The photos evidenced the presence of all of Alex’s symptoms including the swelling and discoloration away from the area treated for ingrown toenail. The photographs all also revealed a subtle, but visible vertical line down the nail of darker pigmentation. Whilst this can be present in non-malignant conditions, it is a classic warning sign for a nail melanoma.
Kym sent the photographs along with the medical records to an independent expert podiatrist and podiatric surgeon to provide their opinion on the standard of care that Alex had received. Both experts agreed that the photographs had shown suspicious characteristics from the outset. The GP had discharged his duty by referring Alex on to specialist podiatry services, but our experts were of the view that the podiatrists and the podiatric surgeons should have recognised that the appearance of the toe and the nail, was potentially due to malignant melanoma. There was therefore a duty to refer (in this case to dermatology or directly for biopsy) to exclude this as a diagnosis. Our experts therefore considered that there had been a breach of the duty of care owed to Alex by the podiatric services and the podiatric surgery unit.
We then had to demonstrate what difference earlier referral would have made. An expert consultant dermatologist confirmed that if Alex had been referred when he should have been, an urgent biopsy would have been requested. An expert histopathologist and oncologist confirmed that such a biopsy would have diagnosed the malignant melanoma at a much earlier stage of the disease. At that stage, it would most likely have been successfully treated with a partial amputation of the toe and Alex would have been cured. There would have been no spread of the disease. In addition, even if the diagnosis had not been made initially, earlier diagnosis would have meant that Alex had a wider range of effective treatment options, and timely treatment would have given him a longer life expectancy and reasonable quality of life for most of that time.
Kym sent a formal Letter of Claim to the Defendant NHS Trust to which the Trust responded with a full admission of liability for Alex’s death, and a formal apology to the family.
Quantum investigations and settlement negotiations
Kym then took the necessary steps to quantify the damages claim. As well as considering the direct impact the delay in diagnosis had upon Alex, we needed to consider the impact that his death had on his immediate family. Of course, the biggest impact on the family was the loss of Alex himself and the love and support that he provided on a daily basis to them all. The compensation awarded for the negligent death of a loved one, is though mostly set out in statute (the Bereavement Award) and is a very nominal amount. However, Alex had been the primary breadwinner and the family’s financial situation was significantly different after his premature death. Alex had also been a proactive husband and father, undertaking his full share of domestic and parental responsibilities. Following his death, all of this either fell to his wife to try to replace, had to be paid for privately, or simply could no longer be done. There was therefore a substantial loss of dependency claim to be considered under the Fatal Accidents Act.
There was a significant difference between the valuation of the claim put forward by Kym on behalf of the family, and the valuation put forward by the Defendant NHS Trust (who valued the claim at less than 50% of the Schedule of Loss). There were also a few clear differences of opinion on what should and should not be recoverable from the Defendant, as well as the amounts in question. However, after a long day of negotiations, the claim settled for a 7-figure sum, which has avoided the need to go through formal court proceedings.
Moving forward after the claim
Alex’s family are now able to try to move forward with their lives, safe in the knowledge that they have upheld Alex’s wishes and that they will be properly provided for as he would have done, even though he can no longer be with them.
They also hope that by bringing this claim, lessons will be learned by those clinicians who treat patients who present with unusual or persistent foot and nail problems. Malignant melanoma, including subungual melanoma, is a condition that can readily be treated if it is caught in the early stages of the disease. However, a significant delay in diagnosis can have catastrophic consequences. It is vital that clinicians recognise the potential warning signs and have a low threshold of suspicion to refer and confirm or exclude a diagnosis.
How we can help
At Enable Law we have a specialist clinical negligence team supporting cancer patients and their loved ones investigate and bring claims related to concerns they have about cancer diagnosis and treatment. To have a free, confidential discussion with Kym or a member of our team call us on 0800 044 8488 or fill in our contact form so we can give you a call at a time convenient for you.
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