#10057 - Causation In Medical Negligence - Medical Law and Ethics

CAUSATION IN MEDICAL NEGLIGENCE

OPENING

1. Thomson v Bradford – even if C can establish negligence, this isn’t enough

TEST

1. Barnett v Chelsea & Kensington

• But for test applies

• FACTS: Doctor had turned away a patient with stomach pains, who later died of arsenic poisoning. Doctor had breached duty of care, however, evidence showed that on the balance of probabilities, even if the doctor had seen the patient he would not have been able to save him.

EXCEPTION 1: WHERE IT’S UNCLEAR WHETHER INJURY CAUSED BY D OR SOME OTHER CAUSE

1. law in not clear on this, but recent cases seem to suggest that if D materially contributed towards the injury, he’s liable

2. Wilsher v Essex – HL where there were 5 possible causes of C’s injury, Doctor’s breach couldn’t satisfy causation and thus D wasn’t held to be negligent THEN

3. Fairchild v Glenhaven HL

• asbestos exposure from a number of employers, all held to liable as all had materially increased the risk of harm to employee,

• but HL approved Wilsher as otherwise, according to Lord Hoffman, there would be a ‘massive increase in the liability of the NHS’ THEN

4. Wooton v J Doctor – CA – more recent decision left as open whether Fairchild can apply to medical case THEN

5. Bailey v Ministry of Defence CA – Waller LJ said that ‘one cannot draw a distinction between medical negligence cases and others’ THEN

6. Canning-Kishver – CA – material cause was applied here to 2011 case

7. ME: Essentially, where a number of breaches of duty could have caused C’s injury, doctor’s negligence being one of them, doctor won’t be found liable according to Wilsher. Fairchild suggested this was otherwise in personal injury, but upheld an exception seemingly to medical situations for a policy reason (too much litigation for the NHS). Fairchild is a HL case so this still stands. However, there have been more recent CA decisions like Bailey which suggest that Fairchild rule should apply to medical law also. Also, Canning-Kishver seems to apply this material cause. So Herring thinks that ‘but for’ isn’t necessary, it’s sufficient to show material cause

FAILURE TO WARN

1. Chester v Afshar

• but for couldn’t be satisfied, but HL modified the test on public policy grounds, to reflect the reasonable expectations of the public that they be warned about associated risks so that they make informed decisions (even where only a 1-2% chance of significant nerve damage)

• but for wasn’t satisfied because even if C was told, she would still have undergone the procedure, except just at a later date

LOSS OF CHANCE

1. If properly cared for C’s illness would have been diagnosed.

2. Hotson v E Berkshire

• Trial judge gave C 25% damages based on 25% loss of chance

• HL overturned

3. Gregg v Scott HL

• Negligent misdiagnosis meant that C’s chances of surviving cancer for more than 10 years went from 42% to 25%. So even if properly diagnosed, on balance of probabilities, couldn’t be shown that negligence caused loss

• 3-2 split in HL

• LORD HOFFMAN (maj) > should be up to legislators to decide otherwise

• LORD PHILLIPS (maj) > negligence hadn’t caused loss. Robust test preferable to one that can’t be applied in practice

• BARONESS HALE (maj) > it’s not about punishment of wrongdoer, and it’s the actual loss suffered

• LORD NICHOLLS (min) > loss of 45% chance of recovery is just as real as a 55% chance of recovery

4. I sympathise with minority. Smithurst v Sealant emphasised difference between causation and assessment. Majority seemed to have been judging the wrong loss. They viewed the loss as the chance of D dying. I view the loss as a reduction in his chances of recovery. Was there a reduction in his chances of recovery, yes in all likelihood. The 42% and 25% figures relate to assessment, not causation therefore. So C should be compensated for the extent of that loss. However, I’m also sympathetic to fear of public policy ground of making litigation too much for litigation. Because it could mean that you simply have to frame the question in another way. Thus, it could be a way to side-step causation altogether. For example, but for D’s negligence I had an increased chance of dying. Even though I...