A delayed cancer diagnosis can change a person’s treatment, family life and future. When a doctor’s failure to investigate symptoms causes additional harm, there may be grounds for a medical negligence claim.
In Peterkin v Tadros (No 2) [2026] NSWSC 1325, the Supreme Court of NSW considered the consequences of a delayed bowel cancer diagnosis. The decision also explains how a patient’s failure to report returning symptoms or follow up a referral can affect compensation.
A missed opportunity to investigate
In August 2022, Mr Peterkin consulted a GP about rectal bleeding. The Court found that the GP failed to ask how long the bleeding had been occurring, diagnosed a haemorrhoid he had not seen, and did not offer a digital rectal examination.
The Court described the GP’s conduct as a significant departure from the standard expected of a reasonable general practitioner.
With appropriate investigation and referral, Mr Peterkin would probably have been diagnosed with cancer by February 2023. Instead, he was diagnosed in May 2024.
How the delayed diagnosis affected his life
The consequences extended beyond additional medical treatment.
The Court found that the delay led to a more difficult course involving a colostomy before treatment, bowel perforation and cancer recurring in the pelvis. Mr Peterkin was left with a permanent colostomy and incurable disease.
His illness affected his work, hobbies, relationship and plans to have another child. The Court also recognised the emotional distress of facing a shortened life.
Crucially, the Court distinguished harm caused by the delay from consequences that would have occurred even with an earlier diagnosis. Earlier diagnosis would still have required significant cancer treatment. However, the delay reduced his life expectancy by approximately 4.75 years.
Why was compensation reduced?
The Court also considered Mr Peterkin’s actions after the GP consultation.
He had received a pamphlet from the GP warning that bleeding attributed to haemorrhoids could come from cancer. When his symptoms returned, he did not mention them at seven later consultations. He also waited 137 days to act on another doctor’s specialist referral.
The Court accepted the patient’s submission that the August 2022 diagnosis provided some reassurance that his symptoms were caused by a benign condition. However, it found that his later inaction contributed to the harm.
This is called contributory negligence. In NSW, it involves considering what a reasonable person in the patient’s position would have done, based on what they knew or ought to have known at the time.
The Court found that the plaintiff’s failure to act contributed to the delayed diagnosis and assessed his share of responsibility for the resulting harm at 35%.His damages were reduced from $648,654.60 to $421,625.49.
Can you still claim if you delayed following up?
Potentially, yes. In this case, the patient’s contribution to the delayed diagnosis reduced his compensation, but he still succeeded in his claim.
The assessment depends on the circumstances, including the advice and warnings provided, what the patient understood, and whether their actions contributed to the harm. The 35% reduction was specific to this case.
Does a delayed diagnosis always mean negligence?
No. A delayed diagnosis does not, by itself, establish negligence. To succeed in a claim, there must be evidence that the care provided fell below the standard of care reasonably expected in the circumstances and that this contributed to a worse outcome. It must also be shown that an earlier diagnosis would likely have altered the person’s treatment, prognosis, or overall outcome.
Medical records and independent expert evidence are central to assessing these questions.
How we can help
If you are concerned that symptoms were overlooked or a diagnosis was delayed, our medical negligence team can help you understand your options.
At The Law Office of Conrad Curry, we assist people across NSW, including Newcastle and the Central Coast. We can review the circumstances and explain the evidence needed to assess a potential claim.
Time limits apply, so seek legal advice promptly.
DISCLAIMER
This article reflects the current law at the time of publication. Please note that cases may have been the subject to appeal or subsequent judicial consideration since the date of posting. The decisions referred to are summarised for general understanding only. It is intended for informational purposes only and does not constitute legal advice. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.