#1717 - Gregg V Scott - Medical Law

Gregg v Scott

House of Lords

Facts

G was negligently diagnosed as not having cancer, with the result that his chances for 10 year survival fell from 42% to 25%

Held Lord Nicholls

• The loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of a 55% prospect of recovery.

  • In both cases the doctor was in breach of his duty to his patient. In both cases the patient was worse off. He lost something of importance and value.

Distinction between past and future events

• Currently, in determining what did happen in the past a court decides on the balance of probabilities.

  • Anything that is more probable than not it treats as certain.

  • But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past,

    • the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances,

      • whether they are more or less than even, in the amount of damages it awards

Criticism of this

• This sharp distinction between past events and future possibilities is open to criticism.

  • Whether an event occurred in the past can be every bit as uncertain as whether an event is likely to occur in the future.

    • But by and large this established distinction works well enough

  • In practice the distinction is least satisfactory when applied to hypothetical events (what would have happened had the wrong not been committed).

    • The theory underpinning the all-or-nothing approach to proof of past facts appears to be that a past fact either happened or it did not and the law should proceed on the same footing.

    • But the underlying certainty, that a past fact happened or it did not, is absent from hypothetical facts.

      • By definition hypothetical events did not happen in the past, nor will they happen in the future.

        • The defendant's wrong precluded them from ever materialising

• In some cases what C lost by the negligence was the opportunity or chance to achieve a desired result whose achievement was outside his control and inherently uncertain

  • But as the uncertainty of outcome increases, this way of defining C’s loss accords ever less closely with what in practice the claimant had and what in practice he lost by the defendant's negligence

  • In order to achieve a just result in such cases C’s actionable damage is defined more narrowly by reference to the opportunity the claimant lost,

    • In adopting this approach the law does not depart from the principle that C must prove actionable damage on the balance of probability.

      • The law treats the C's loss of his opportunity or chance as itself actionable damage. C must prove this loss on balance of probability.

        • The chance is to be ignored if it was merely speculative, but evaluated if it was substantial

• So when an employer negligently supplied an inaccurate character reference, the employee did not need to prove that, but for the negligence, he would probably have been given the new job.

  • The employee only had to prove he lost a reasonable chance of employment, which the court would evaluate (Spring)

  • In Allied Maples Group a solicitor's negligence deprived C of an opportunity to negotiate a better bargain.

    • Stuart-Smith LJ regarded the case as one of those where "the plaintiff's loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff ... or independently of it".

      • It is clear that Stuart-Smith LJ did not intend this to be a precise or exhaustive statement of the circumstances where loss of a chance may constitute actionable damage and his observation should not be so understood

Medical negligence

• D says "loss" is confined to an outcome which is shown, on balance of probability, to be worse than it otherwise would have been.

  • i.e. C must prove that, on balance of probability, his medical condition after the negligence was worse than it would have been in the absence of the negligence.

  • C says his "loss" includes proved diminution in the prospects of a favourable outcome

    • No doubt in some cases medical opinion will be that, given his pre-existing condition, the patient lost nothing by the delay in treatment because he never had any realistic prospect of recovery.

    • In other cases medical opinion may be that the patient lost everything

      • But there are also many cases of serious illness or injury where a patient's existing chances of recovery fall between these extremes.

        • There are occasions where medical opinion will be that, given prompt and appropriate treatment, the outcome was uncertain but the patient's prospects of recovery were appreciable, sometimes exceeding 50%, sometimes not.

• In the medical context Limitations on human knowledge mean that, to greater or lesser extent, the prognosis for a patient is inherently uncertain

  • Given this uncertainty of outcome, the damage must be the loss of the chance of a favourable outcome, rather than the loss of the outcome itself.

    • This recognises what in practice the patient lost by reason of that negligence.

      • And this analysis of a patient's loss accords with the purpose of the legal duty of which the doctor was in breach -to promote the patient's prospects of recovery.

• The common law imposes duties and seeks to provide appropriate remedies in the event of a breach of duty.

  • If negligent diagnosis or treatment diminishes a patient's prospects of recovery, a law which does not recognise this as a wrong calling for redress would be seriously deficient today.

    • The law would rightly be open to reproach were it to provide a remedy if what is lost by a professional adviser's negligence is a financial opportunity or chance

      • but refuse a remedy where what is lost by a doctor's negligence is the chance of health or even life itself.

Statistics

• In a professional negligence claim, the court can assess what would have been the claimant's prospects in the time-barred proceedings by having regard to a wide range of known facts peculiar to the particular case:

  • E.g. the nature of the issues, the evidence which would have been available, and so forth.

  • In cases of medical negligence assessment of a patient's loss may be hampered, by not knowing how the particular patient would have responded to proper treatment at the right time.

    • Statistical evidence is not strictly a guide to what would have happened in one particular case.

      • They reveal trends of outcome and say nothing about how C would perform.

  • This difficulty was the foundation of a submission based on the proposition that a "statistical chance" has no value, so its "loss" cannot attract an award of compensation.

    • But in suitable cases courts are prepared to adapt their process so as to leap an evidentiary gap when overall fairness plainly so requires.

      • The value of the statistics will of course depend upon their quality: the methodology used in their compilation, how up to date they are, the number of patients involved in the statistics, the closeness of their position to that of the claimant, the clarity of the trend revealed by the figures, and so on.

        • But to reject all statistical evidence out of hand would not be acceptable

Further problems

• In Chaplin the chance she lost was the opportunity to attend and be considered at the interview.

  • C’s actual position at the time of the negligence is not determinative of the crucial hypothetical fact:

    • what would have been C’s position in the absence of the wrong?

  • The position with medical negligence claims is different.

    • The patient's actual condition at the time of the negligence will often be determinative of the answer to the crucially important hypothetical question of what would have been C’s position in the absence of the negligence.

      • In Hotson the relevant factual question concerning H’s condition immediately prior to the negligence

        • was whether his fall from the tree had left sufficient blood vessels intact to keep his left femoral epiphysis alive.

        • The answer to this question of actual fact ipso facto provided the answer to the vital hypothetical question: would prompt treatment have avoided this?

          • The answer to the first question necessarily provided the answer to the second question,

            • because the second question is no more than a mirror image of the first.

• This is not always so. Many cases are not so straightforward.

  • Sometimes it is not possible to frame factual questions about a patient's condition which are (a) susceptible of sure answer and also (b) determinative of the outcome for the patient.

    • The law should recognise the manifestly unsatisfactory consequences which would follow from adopting an all-or-nothing balance of probability approach as the answer to this question.

      • The law should recognise that C’s prospects of recovery had he been treated promptly, expressed in percentage terms of likelihood, represent the reality of his position so far as medical knowledge is concerned.

      • A patient should have an appropriate remedy when he loses the very thing it was the doctor's duty to protect.

        • To this end the law should recognise the existence and loss of poor and indifferent prospects as well as those more favourable

Held Lord Hoffmann (maj)

• The law regards the world as in principle bound by laws of causality.

  • Everything has a determinate cause, even if we do not know what it is.

    • The blood-starved hip joint in Hotson's case, the blindness in Wilsher's case, the mesothelioma in Fairchild's case;

      • C had to prove that...