#1720 - Hotson V E Berkshire Ha - Medical Law

Hotson v E Berkshire HA [1987] AC 750

House of Lords

Facts

H fell out a tree, injuring his leg. When he went to hospital, the doctor negligently failed to diagnose the problem correctly, with the result that H had to have his leg amputated. Had H had prompt treatment, he would have had a 25% chance of saving the leg, but still a 75% chance of losing it.

Issue

Loss of chance

Held Lord Bridge

• The failure of the blood supply to the epiphysis which caused the avascular necrosis could itself only have been caused in one of two ways:

  • either the injury sustained in the fall caused the rupture of such a high proportion

  • or the blood vessels remaining intact were sufficient to keep the epiphysis alive

    • but were subsequently occluded by pressure within the joint caused by haematoma

• In some cases, perhaps particularly medical negligence cases, causation may be so shrouded in mystery that the court can only measure statistical chances.

  • On the evidence there was a clear conflict as to what had caused the avascular necrosis.

    • The authority's evidence was that the sole cause was the original traumatic injury to the hip.

    • The plaintiff's evidence, at its highest, was that the delay in treatment was a material contributory cause.

  • This was a conflict, like any other about some relevant past event, which the judge could not avoid resolving on a balance of probabilities.

    • Unless the plaintiff proved on a balance of probabilities that the delayed treatment was at least a material contributory cause of the avascular necrosis he failed on the issue of causation and no question of quantification could arise.

    • But the judge's findings of fact are unmistakably to the effect that on a balance of probabilities the injury caused by the plaintiff's fall left insufficient blood vessels intact to keep the epiphysis alive.

      • This amounts to a finding of fact that the fall was the sole cause of the avascular necrosis.

• Would it be ever attractive to award for a loss of chance?

  • There is a superficially attractive analogy between the principle applied in such cases as Chaplin v Hicks

    • and the principle of awarding damages for the lost chance of avoiding personal injury

    • or for the lost chance of a better medical result which might have been achieved by prompt diagnosis and correct treatment.

  • I think there are formidable difficulties in the way of accepting the analogy.

    • But I do not see this appeal as a suitable occasion for reaching a settled conclusion as to whether the analogy can ever be applied.

      • As I have said, there was in this case an inescapable issue of causation first to be resolved.

        • But if C had proved on a balance of probabilities that the authority's negligent failure to diagnose and treat his injury promptly had materially contributed to the development of avascular necrosis,

          • I know of no principle of English law which would have entitled the authority to a discount from the full measure of damage to reflect the chance that, even given prompt treatment, avascular necrosis might well still have developed

Lord Mackay

• what was the plaintiff's condition on being first presented at the hospital? Did he have intact sufficient blood vessels to keep the affected epiphysis alive?

  • The judge held that it was more probable than not that insufficient vessels had been left intact by the fall to maintain an adequate blood supply to the epiphysis

  • and he expressed this balance by saying that it was 75 per cent. to 25 per cent

• In the circumstances of this case the probable effect of delay in treatment was determined by the state of facts existing when the plaintiff was first presented to the hospital.

  • It is not, in my opinion, correct to say that on arrival at the hospital he had a 25 per cent. chance of recovery.

    • If insufficient blood vessels were left intact by the fall he had no prospect of avoiding complete avascular necrosis

    • whereas if sufficient blood vessels were left intact on the judge's findings no further damage to the blood supply would have resulted if he had been given immediate treatment,

      • and he would not have suffered the avascular necrosis

• As I have said, the fundamental question of fact to be answered in this case related to a point in time before the negligent failure to treat began. It must, therefore, be a matter of past fact

  • On the other hand, I consider that it would be unwise in the present case to lay it down as a rule that a plaintiff could never succeed by proving loss of a chance in a medical negligence case.

• In Herskovits v. Group Health Cooperative of Puget Sound

  • In this case the claim arose in respect of Mr. H's death. He was seen at Group Health Hospital at a time when he was suffering from a tumour but this was not diagnosed on first examination.

    • The medical evidence available suggested that at that stage, assuming the tumour was a stage 1 tumour, the chance of survival for more than five years was 39 per cent.

    • When he was treated later the tumour was a stage 2 tumour and the chance of surviving more than five years was 25 per cent

  • The court held that it would not dismiss the motion

    • To decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50 per cent. chance of survival, regardless of how flagrant the negligence

    • In the typical tort case, the 'but for' test, requiring proof that damages or death probably would not have occurred 'but for' the negligent conduct of the defendant, is appropriate.

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