Loss of chance in clinical negligence

Greg v Scott HL TLR 28 January

By a majority of 3:2 the House held that where a medical general practitioner had negligently failed to refer for investigation a patient with possible symptoms of cancer, with the result that there was a nine-month delay in treatment for the condition, the patient, whose chances of survival during that delayed period had fallen from 42% to 25%, could not recover damages for that loss of chance. The doctor had diagnosed a lump under the claimant’s arm as being a collection of fatty tissues which, although it was the most likely explanation, was unfortunately wrong. A year later another general practitioner referred the claimant to a hospital where it was discovered that he had cancer of a lymph gland. The tumour had by now spread into his chest and, although the tumour responded to treatment, it was followed by a relapse which left the claimant with a poor prospect of survival. The judge had found that the first doctor had been negligent in excluding the possibility that the growth might not be benign. A routine reference to a hospital would have settled the matter. The claimant’s claim was based on two grounds. First, the delay had caused him injury because the judge had found that if treated earlier the cancer would probably not have spread as quickly as it did. Accordingly, he claimed compensation for that injury and that compensation should include the reduction in his chances of survival. This was based on the principle that in quantifying the loss likely to have been caused by the defendant’s wrongful act, the court will take into account possibilities, even though they did not amount to probabilities. However, that principle applies only to damage which it is proved was attributable to the defendant’s wrongful act. If an injured joint subsequently developed arthritis, there was usually no dispute that the arthritis would be attributable to the injury In the present case, the question was not whether the claimant was likely to survive for more than the 10 years which was regarded as constituting a cure, but whether his likely premature death would be attributable to the wrongful act of the defendant. The spread of the cancer was not caused by the defendant’s negligence because it was likely that the claimant’s life would have been shortened to less than 10 years anyway. The claimant’s second argument was that reduction in the prospect of a favourable outcome, which constituted the loss of a chance, should be a recoverable head of damage. The question was whether the principle would apply to a case of clinical negligence. The House of Lords had previously ruled that it was not, in Hotson v East Berkshire Area Health Authority [1987] AC 750 and Wilsher v Essex Area Health Authority [1988] AC 1074. In Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 the House of Lords had held that mesothelioma A had a determinate cause in one fibre or other but constructed a special rule imposing liability for conduct which only increased the chances of the employee contracting the disease. That rule was restrictively defined in terms which made it inapplicable in the present case. The law regards the world as, in principle, governed by laws of causality. Everything has a determinate cause, even if we do not know what it was. The fact that proof was rendered difficult or impossible because no examination was made at the time, as in Hotson, or because medical science could not provide the answer, as in Wilsher, made no difference. There is no inherent uncertainty about what caused something to happen in the past or about whether something that happened in the past could cause something to happen in the future. Everything was determined by causality. What was lacking was knowledge, and the law dealt with lack of knowledge by the concept of the burden of proof. Any change in the criterion of liability by substituting ‘possible’ rather than the traditional ‘probable’ test for causation would be so radical as to amount to a legislative act, and therefore any such change was for Parliament and not the House.