UK: Medical Negligence - Loss of a Chance

In this bulletin we consider the decision of the Court of Appeal in Gregg v Scott [2002] All ER 418.

The facts

• In November 1994 the Claimant visited the Defendant, his GP, and asked him to look at a lump under his arm. The Defendant wrongly diagnosed it as a benign lipoma and failed to refer the Claimant to a specialist.
• In 1995 the Claimant moved house and consulted another GP who referred him to a specialist. The specialist diagnosed cancer and the Claimant commenced treatment. Had the Claimant been referred by the Defendant and treatment commenced he would have received treatment some nine months earlier.
• If the Claimant had been referred to a specialist by the Defendant, and a diagnosis made, the Claimant’s chances of survival would have been 42%. As a consequence of the nine month delay, his prospects were reduced to 25%. The Defendant’s negligence accordingly reduced the Claimant’s chances of survival by 17%.

The decision

The Court of Appeal (by a majority) upheld the decision of the judge at first instance and held the Claimant was unable to recover. In order to recover a Claimant must establish on a balance of probabilities that the Defendant’s negligence had a material affect on the outcome of the disease. As the Claimant’s chances of survival, irrespective of the Defendant’s negligence, were less than 50%, the claim failed.

Discussion

This decision, which has been appealed to the House of Lords, has brought into sharp focus the ongoing debate as to whether damages should be awarded for medical negligence in "loss of chance" cases.

In Hotson v East Berkshire Health Authority [1987] 2 All England 909 the Claimant suffered an injury and was referred to hospital where a doctor negligently failed to diagnose his condition. The House of Lords rejected the Claimant’s claim because the avascular necrosis which developed was found to have been inevitable and there was nothing that could have been done even had the Defendant made a correct diagnosis.

As a consequence of Hotson, in many medical negligence actions the dispute between the parties is whether the Defendant’s negligence has, on a balance of probabilities, had a material affect on the outcome of the Claimant’s injury/disease or not. In the present case, at first instance the Claimant unsuccessfully argued that the GP’s negligence was causative of his disease but, in the alternative, it was also contended that damages should be awarded where the Defendant’s negligence had only reduced his chances of survival. The Claimant advanced arguments on a number of grounds including:

• The prompt treatment would have prevented the spread of the tumour. Therefore, the Defendant’s negligence caused the tumour to grow which constituted a tort in itself for which compensation could be awarded.
• The House of Lords’ decision in Fairchild permits the Court to consider, as a matter of policy, whether such a claim can succeed. In Fairchild the Claimant developed mesothelioma as a consequence of exposure to asbestos. During his working life he had been employed by a number of companies which had exposed him to asbestos and he was unable to identify, on the balance of probabilities, which employer had exposed him to the fatal asbestos fibre. The House of Lords permitted the Claimant, in those circumstances, to recover damages against each employer.

The majority of the Court of Appeal rejected the Claimant’s arguments although on different grounds. Lord Justice Mance distinguished Hotson on the basis that in Hotson the avascular necrosis was inevitable whereas, in the present case, the Defendant’s negligence had led to the spread of the tumour. He rejected, however, the contention that the growth of the tumour due to the Defendant’s negligence was a tort in itself. He also rejected the argument that Fairchild enables a more flexible approach to determining causation. It is evident that his decision was influenced by considerations of policy. He stated:

"I think that to accept the appellant’s suggested approach in the present (very common) category of medical negligence case, involving failure to diagnose, would both open a considerable gate to claims based on percentages, and create a new category of case which would be difficulty to distinguish in practice from other common cases of medical negligence"

Lord Justice Simon Brown found nothing in the Claimant’s case to distinguish it from Hotson and agreed that nothing in the speeches of the House of Lords in Fairchild supported a more relaxed approach to determining causation. "With considerable regret" he dismissed the appeal.

Lord Justice Latham delivered the dissenting Judgment. He agreed with Lord Justice Mance that Hotson was distinguishable on the grounds that in the present case the Defendant’s negligence made the Claimant’s position worse. In his opinion, once it had been established that the Defendant’s negligence had caused the spread of the tumour, liability was established and it was merely a function of quantum to assess the consequences of that negligence (namely the reduced prospects of successful treatment).

We shall return to this decision once the House of Lords has given its Judgment. The Court of Appeal, whilst recognising that the ordinary man might have some difficulty understanding why damages were not recoverable, have stepped back from taking the enormous step of recognising loss of chance cases in the context of medical negligence claims. The decision is also of importance because it re-affirms that the Fairchild decision is a decision on its own particular facts and, whilst there might be other analogous situations where a Fairchild approach to assessing causation is appropriate, that category of case is to be kept within strict limits and the balance of probabilities test remains the guiding principle to determining causation.

Article by Howard Watson

© Herbert Smith 2003

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