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Medical negligence and the loss of chance

What is medical negligence?

It has been established for some time that doctors have a number of duties to all their patients. These are in respect of confidentiality but the medics also have a duty to treat all their patients with reasonable skill and care.

Medical negligence has evolved in law as one means of holding medical professionals to account and ensuring that doctors do perform their duties to the required standard. 

In order to claim compensation for medical negligence, all the elements of negligence need to be present and established by the Claimant. Therefore, the Claimant needs to show that a duty was owed to him by the doctor and it was not satisfied. Further, he needs to be able to prove that as a result recoverable injury was sustained.

In addition, since the claim is against a professional it is important to emphasise that the standard of care expected from doctors and people involved in the medical profession would be considerably higher than other relationships giving rise to a duty of care.

Defining loss of chance

Unfortunately it is not uncommon for doctors as human beings to make mistakes. In some situations those mistakes could lead to an unfavourable development in the patient’s illness, different symptoms or even an entirely new injury. All of those situations are currently dealt with by the law of medical negligence.

Another aspect of that area of law is the loss of chance where no new injury was caused by the negligence. Those claims arise for example where through the doctor’s negligent act a patient has been misdiagnosed or has suffered delay in receiving the correct diagnosis. Therefore, even though in most circumstances no actual new injury has developed, through the delay the patient’s condition has exacerbated and he has lost all or some of his chance of recovery or survival.

The current position

The law is rather complex and in some aspects very rigid, which inevitably leads to harsh outcomes. The leading authority is the case of Gregg v Scott [2005] 2 A.C. 176 heard before the House of Lords. Following lengthy considerations in that case, by a close majority of 3 to 2 in the House of Lords, the current principles of recovery for lost chance were established.

Claiming for lost chance of recovery

The authority above establishes that loss of chance could be recovered in very limited circumstances. The principles focus on the Claimant’s condition before the negligent act took place. In essence, the Claimant has to be able to prove that it is more likely than not that his condition was amendable when he visited the doctor. If such is the case, the Claimant would be able to recover for the loss in full irrespective of the size of the loss suffered.

On the other hand, if a Claimant cannot show that on the balance of probabilities the treatment would have made a difference, he will recover nothing.

Therefore, the law of causation here presents a difficult hurdle to be overcome. In particular, this proves to be claimant unfriendly where a person has been misdiagnosed without any or any relevant tests taking place. As a result, the person has no evidence and therefore no proof of his chances of recovery prior to the negligent act. Accordingly, he would not be able to satisfy his burden in proving causation as one of the elements of negligence.

From the judgment it could be seen that the framework was devised to establish clarity and legal certainty and as such provide for consistency within judgments. However, this also means that it reduces the flexibility of the outcome and the powers of the courts in respect of such claims.

In practice

It could be seen that there is a harsh distinction between those who have 51% chance of survival and those who have 49% chance irrespective of the loss incurred by either of the examples.

Consequently, a person whose chances have fallen from 65% chance of recovery to 55% would recover in full even though the loss is estimated at 10%. While another whose chances have been reduced from 45% to for example 10% would not be able to receive compensation for that loss, even though the reduction is higher than in the first example and on the face of it the loss appears more significant.

It is important to also emphasise that from a patient’s perspective the starting point before the negligent act and the actual amount of the loss are of little significance since for them a loss of 10% is as much a real loss as anything higher.

Further difficulties could occur in relation to the gathering of information and calculation of the relevant percentages firstly due to the fact that people do not become aware of the negligent act for some time following the event. Additionally, the circumstances are more complicated due to the inherent difficulty in ascertaining percentages for past and future prospects of recovery.

Following the decision

The decision of the House of Lords has been criticised mainly because it provides a rather policy orientated as opposed to claimant focused approach.

Academics have expressed dissatisfaction with the law as it protects from floodgates of claims but denies compensation for a number of individual cases where mistake took place which led to a loss.

Further, concerns have been raised about the feelings of litigants who have suffered a reduction in their chances of survival but are denied recognisance of that loss and compensation because they fall short of the 50% causation hurdle.

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