The paradox of no liability in clinical negligence for missing the diagnosis of disease with poor outcome ~ Gregg v Scott

The fact

• Mr. Gregg was misdiagnosed by Dr. Scott to have lipoma at the axilla in November 1994.
• He was in fact suffering from non-Hodgkin’s lymphoma, which was only found out by another doctor in August 1995, nine month after his first consultation with Dr. Scott.
• Expert opinion pointed out that his chance of recovery, as defined by ten year survival, had been decreased from 42% to 27%.
• His claim for damage for “lost of chance” was rejected by the court of first instance and then by the Court of Appeal. The House of Lords, by a narrow majority of 3 to 2, also disallowed the appeal on January 27, 2005.

The law

• In the law of tort, negligence is established if actionable damage, which is not too remote, is caused by a breach in the duty of care owed by the defendant to the claimant. 
• It is the claimant to prove all the four components, among which causation is the most difficult part as in clinical negligence.
• The “but for” test is used in proving causation. The case is established if “but for” the defendant’s breach of his duty owed, the claimant would not suffer the actionable damage. It came to a point when the unfavorable outcome would “probably” happen anyway, as in this case that Mr. Gregg had a 58% chance of dying of the disease in ten years, there was by no means that the claimant could pass the “but for” test if the damage he was claiming was about the unfavorable outcome. This was because even without the defendant’s negligent act, there was a more than even chance that the damage would be there.
• Compensation (damage) comes in an all-or-nothing manner. In Hotson v East Berkshire Area Health Authority , a 13 year old boy fell from a tree and sustained a traumatic fracture of the left femoral epiphysis. The doctor missed the diagnosis and delayed treatment for five days. He then suffered avascular necrosis of the epiphysis with consequential serious disability. Expert opinion suggested that the fate of avascular necrosis was determined at the time of injury and gave a figure of 25% chance of full recovery if diagnosed and treated promptly. The trial judge awarded a sum which reflected 25% of the total damage to the claimant, and this was affirmed by the Court of Appeal. However, the House of Lords reversed this decision and found that the claimant failed to prove his case on the balance of probability. He failed the “but for” test as even without the miss in diagnosis, he was more likely to develop avascular necrosis than not.
• This time, Mr. Gregg put his case in terms of lost of chance of recovery as from 42% to 27%, which was a substantial reduction. This again failed.

The implication

• Negligent act “causing” a reduction of chance of survival from 49% to 0% would fail the “but for” test, while negligent act reducing the claimant’s chance of survival from 51% to 49% could satisfy the test for causation.
• The view that the “but for” test for causation should be loosen in order to do justice as expressed in the judgement of the recent controversial case Chester v Afhsar was not shared by the law lords in this case.
• As long as the prognosis of the disease bears a less than even chance of recovery (such as many malignancies, extensive cardiovascular and cerebral vascular accidents), it would be paradoxically more diffucult to establish liability for a miss diagnosis with a more serious disease.

My observations

• Judges and law lords needed some tutorials in statistic. 
• I wonder why there wasn’t much discussion about the confident intervals of the risks and chances quoted, as these confident intervals were expected to be wide.
• The cohort quoted for risk estimation in Gregg composed of around 100 patients with different ages and sexes. Whether these figures were applicable to Mr. Gregg as an individual would be highly questionable.
• The most fallable concept was given in the judgement of Chester v Afhsar (the “informed consent” case with a neurosurgeon) by two law lords. The claimant frankly admitted that she would probably have the surgery on another day (and not refused to have the surgery altogether) if the surgeon had told her that there was a less than 1% chance of injury to the spine and caused paralysis. It was given in the judgement that “but for the surgeon’s negligent failure to warn the claimant of the small risk of serious injury, the actual injury would not have occurred … and the chance of it occurring on a subsequent occasion was very small.” That was comparing a rare event that had actually happened (a certainty) with the probability of that event happening again!
• Legal reasoning is difficult to understand, unless you have the concept of “policy consideration” in you mind. And “policy consideration” means framing argument according to preset outcome.