Medical Negligence - Loss of a Chance

In this bulletin we consider the decision of the Court of Appeal in Gregg v Scott [2002] All ER 418.

The facts

In November 1994 the Claimant visited the Defendant, his GP, and asked him to look at a lump under his arm. The Defendant wrongly diagnosed it as a benign lipoma and failed to refer the Claimant to a specialist.

In 1995 the Claimant moved house and consulted another GP who referred him to a specialist. The specialist diagnosed cancer and the Claimant commenced treatment. Had the Claimant been referred by the Defendant and treatment commenced he would have received treatment some nine months earlier.

If the Claimant had been referred to a specialist by the Defendant, and a diagnosis made, the Claimant's chances of survival would have been 42%. As a consequence of the nine month delay, his prospects were reduced to 25%. The Defendant's negligence accordingly reduced the Claimant's chances of survival by 17%.

The decision

The Court of Appeal (by a majority) upheld the decision of the judge at first instance and held the Claimant was unable to recover. In order to recover a Claimant must establish on a balance of probabilities that the Defendant's negligence had a material affect on the outcome of the disease. As the Claimant's chances of survival, irrespective of the Defendant's negligence, were less than 50%, the claim failed.

Discussion

This decision, which has been appealed to the House of Lords, has brought into sharp focus the ongoing debate as to whether damages should be awarded for medical negligence in "loss of chance" cases.

In Hotson v East Berkshire Health Authority [1987] 2 All England 909 the Claimant suffered an injury and was referred to hospital where a doctor negligently failed to diagnose his condition. The House of Lords rejected the Claimant's claim because the avascular necrosis which developed was found to have been inevitable and there was nothing that could have been done even had the Defendant made a correct diagnosis.

As a consequence of Hotson, in many medical negligence actions the dispute between the parties is whether the Defendant's negligence has, on a balance of probabilities, had a material affect on the outcome of the Claimant's injury/disease or not. In the present case, at first instance the Claimant unsuccessfully argued that the GP's negligence was causative of his disease but, in the alternative, it was also contended that damages should be awarded where the Defendant's negligence had...