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. However, there have been other rulings which help us understand how the courts may approach the issue in subsequent cases. In the absence of definitive rules on the issue, the following principles apply for now:

  • Compensation for loss of chance in medical negligence cases can be recovered in very limited circumstances
  • Claims are dealt with subjectively, depending on the specific facts of the case
  • Causation is a critical factor: if, for instance, the claimant cannot show that on the balance of probabilities the treatment would have made a difference to their survival, they will not succeed
  • Exceptionally strong evidence as to the claimant’s past capabilities may mean a claim for loss of chance succeeds (XYZ v Portsmouth Hospitals NHS Trust (Unreported, 14th February 2011))
  • Both expert evidence and factual evidence is critical to successful loss of chance claims. Speculative claims will not succeed
  • In the case of delayed treatment, a claimant who cannot prove that the negligence caused or materially contributed to a resulting injury may lose their loss of chance claim (Hotson v East Berkshire Area Health Authority [1987])

What of the future?

There is uncertainty in relation to loss of chance claims in medical negligence. In handing down his judgment in Gregg, Lord Nicholls said that “it is always likely to be much easier to resolve issues of causation on balance of probabilities than to identify in terms of percentage the effect that clinical negligence had on the chances of a favourable outcome. This reality is a policy factor that weighs against the introduction into this area of a right to compensation for the loss of a chance. A robust test which produces rough justice may be preferable to a test that on occasion will be difficult, if not impossible, to apply with confidence in practice”.

It will be interested to see how the courts approach future cases involving the quantification of medical negligence claims which include a loss of chance head of claim. For now, it’s clear that unequivocal evidence is required before a claim has any chance of success.