Medical negligence and the loss of chance

What is medical negligence?

Doctors, dentists, and other health professionals have a duty of care towards their patients. The most important aspect of this duty is the duty to treat their patients with reasonable skill and care. Where a doctor or other health professional breaches this duty, and the breach causes personal injury and other losses to the patient, a claim for compensation for medical (or clinical) negligence may follow.

For the purposes of this article, we refer to ‘doctor’, but this includes all health professionals.

To make a successful compensation claim for medical negligence, the claimant needs to show that the doctor owed a duty of care to the claimant; this duty was breached; and the claimant suffered personal injury and losses as direct result of the breach. Note that the standard of care expected from the doctor concerned is important so, for instance, the standard of care expected from an experienced hospital consultant will be higher than that expected of a junior doctor who has been practicing for just a few months.

Loss of chance

The losses a claimant may suffer, or expect to suffer in future, as a result of the personal injury sustained following an incident of medical negligence may include ‘loss of chance’. Loss of chance is, effectively, a lost opportunity that may have had a favourable outcome. It includes the loss of the chance of future higher earnings.

Defining loss of chance

Loss of chance is increasingly a factor in the quantification of personal injury damages. That said, it is no new concept in litigation: in the famous case of Chaplin v Hicks [1911-13], the claimant successfully claimed for loss of the chance to win a beauty contest after the defendant negligently omitted to include her in an earlier round of the competition. Loss of chance in the context of medical negligence cases not such a clear cut issue.

The current position

The law on loss of chance in medical negligence is relatively complex and the courts have demonstrated a differing approach over the years as to how they will quantify such claims. The leading authority is the case of Gregg v Scott [2005] 2 CA 176 in the case of a delayed cancer diagnosis. The then House of Lords established the general principles of recovery for lost chance, and more recent rulings have demonstrated how the courts have approached such claims in the context of medical negligence in the light of Gregg.

In the 2011 ruling in Wright v Cambridge, both Lord Neuberger and Elias LJ took the view that the “loss of a chance” rules should not be applicable in clinical negligence cases, casting doubt on whether compensation is recoverable in loss of chance claims.

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