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Gregg v Scott decision of the House of Lords

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Introduction

Introduction In the context of clinical negligence is it possible to claim damages for a lost opportunity of gaining a more favourable outcome, even though the chances of the better outcome are only a statistical probability which may be less than 50%. In Gregg v Scott the first instance judge said no, and the Court of Appeal reluctantly agreed [i] . The matter came before the House of Lords in May 2004 and their judgement has been keenly awaited by all those involved in the practice and insurance of clinical specialisms. That judgement was delivered earlier today. Mr Gregg has failed in his appeal. Background The defendant General Practitioner of the claimant was found negligent for a delay in the diagnosis of a tumour. The established consequences of this delay was that the tumour grew, and invaded more tissue, progressing from type I to type II, causing more pain. Consequently treatment became more extensive than it would have been had the tumour been spotted earlier. The claimant's chance of five years' survival [ii] following treatment was always less than 50%, but reduced further due to the delayed diagnosis. The first instance trial judge rejected the claim, even though negligence (namely the failure to spot the tumour) and the consequences of the negligence had been established. These factors would to many, seem to constitute an injury, compensatable in law. However it does not seem as though the case was pleaded on any other basis than that the "damage" caused was the reduced life expectancy. ...read more.

Middle

Latham LJ also noted that in Hotson their Lordships had expressly reserved the issue of principle indicating that particularly in medical negligence cases, causation may be so shrouded in mystery that the Court can only measure statistical chances and that it would be wrong to lay down a rule that a claimant could never succeed by proving loss of a chance in a medical negligence case. Ultimately in Gregg v Scott the Court of Appeal decided that the less than evens chance of a different outcome did not sound in damages. There was no proof, they said, that the statistical chance of a better outcome argued for could be taken as more probable, and therefore taken with certainty. They also dismissed the argument, possibly because it had not featured in the court of first instance, that the claimant had suffered a compensatable injury by virtue of the spread of the tumour during the negligent delay. Clearly aware of the extreme situation where claims for damages for personal injury might arise from those who have suffered no injury, save for the statistical possibility of future harm, Latham LJ thought there should be no policy reasons for declining to extend the scope of the tort of negligence to speculative actions such as those based on the loss of a chance. The scene was set for the case to go to the House of Lords. The House of Lords Opinion The judgements of the Law Lords were split. ...read more.

Conclusion

Awarding damages for the reduction of the prospect of a cure, when the long term result of treatment was still uncertain was not a satisfactory exercise. The reasoned judgements of the Law Lords are detailed and thoughtful and will provide plenty of opportunity for comment and debate on this subject for the foreseeable future. [i] Gregg v Scott [2002] EWCA Civ 1471 [ii] The convention for describing a person's life expectancy following treatment of cancer is to describe the statistical or percentage chance of the person surviving for a fixed period of years, usually a multiple of 5 years. [iii] Hotson v East Berkshire Health Authority [1987] AC 750 H, then aged 13, fell from a tree and suffered an acute traumatic fracture of the left femoral epiphys. For 5 days he was not correctly treated and suffered avascular necrosis involving disability of the hip joint and virtual certainty of osteoarthritis. The Health Authority admitted negligence. The trial judge assessed at 75 per cent chance that the avascular necrosis would have developed from the fall anyway and accordingly awarded damages based on the loss of a 25 per cent chance of full recovery. The Health Authority appealed the decision and at the appeal it was held that it was for H to establish on a balance of probabilities that delay had materially contributed to the development of the avascular necrosis and that the judge's findings of fact were contrary to this. Accordingly H failed on issues of causation. The question of whether damages can be awarded for a lost of chance of avoiding personal injury was not settled in the appeal. ?? ?? ?? ?? ...read more.

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