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Date: Thu, 27 May 2004 07:52:24 -0400 From: Jason Neyers Subject: Gregg v Scott
I post this on behalf of MARTIN HOGG:
Dear Colleagues, Gregg v Scott was heard before the Appellate Committee of the House of Lords on Monday and Tuesday of this week. I went to hear the argument before their Lordships. Subscribers of this list are no doubt aware that the appeal centres around a claim for damages for loss of a chance caused by negligent diagnosis of a cancerous tumour. The general practitioner's failure to refer the patient, Mr Gregg, for further examination early enough had reduced his chances of survival from 42% to 25%. The judge at first instance as well as the Court of Appeal rejected his claim for damages. Of interest is that Mr Gregg is still alive, and indeed was present at the Lords in the public gallery with his family. The Appeal was heard before Lords Phillips, Hoffmann, Nicholls, Hope, and Lady Hale. Lead Counsel for the appellants argued firstly that a reduced prospect of recovery is actionable when it follows on from a personal injury (the cancer); his second and alternative argument was that loss of a chance as a stand alone injury ought to be recognised as giving a right to damages in English law. He made reference to comparative law, principally American law, where some states have recognised loss of a chance for a number of years. Counsel emphasised that the scope of the doctor's duty mitigated in favour of recovery for lost chances: a doctor does not have a duty to guarantee that a patient will recover, but he does have a duty to maximise the prospects of a favourable outcome. Counsel for the appellant distinguished Hotson v East Berkshire, on the basis that it was treated by the House of Lords as a deterministic case (to use Helen Reece's terminology), whereas Gregg's case was an indeterministic case. The cases were not therefore analogous, and Hotson should not be seen as rejecting Gregg's claim. Counsel then continued by arguing strongly that the continued refusal by the courts to recognise recovery for medical lost chances was untenable as it created a distinction between doctors and lawyers (against whom recovery for lost chances can be claimed) which was indefensible in principle. In this regard he made reference to Professor Jones's (Liverpool University) recent article, Another Lost Opportunity, which makes this point. He argued that it was odd for the law to give protection against lawyer' 'negligence, but not doctors', when tort law traditionally values protection against personal injury highly. For the defendant, Leading Counsel argued (1) that Gregg's appeal was indistinguishable from Hotson's case, and the appeal should therefore be refused, and (2) that for policy reasons, lost medical chances should not be claimable in tort. On the Hotson point, he said that Hotson and Gregg shared the following similarities: (i) both involved a pre-existing pathology which the defendant did not cause; (ii) in both the negligence lay in a faulty diagnosis by the doctor; (iii) in both the negligence was an omission to act; (iv) in both the underlying condition deteriorated during a period of delay; and (v) in both on the balance of probabilities the outcome complained of would have happened in any event. Counsel for the defendants was questioned repeatedly by the bench as to the relationship between Hotson and the present appeal. Lord Phillips posed a question indicating that he saw a difference between a case in which one cannot say in to which of 2 statistical groups a patient falls, and cases where statistical figures are being used to express a degree of confidence in the balance of probabilities (which seemed he thought to be the Lords approach in Hotson). Counsel for the defendant went on to suggest that, if lost chance medical cases were permitted, because these were a great proportion of medical negligence claims, plaintiffs would find that defendants might start attacking their claims for damages wherever the plaintiff could not establish with 100% certainty that the defendant had caused the injuries, thus complicating and drawing out much litigation. I saw this argument as based on a fundamental confusion in counsel's mind between the balance of probabilities test and cases where lost chance is the gist of the action, a confusion Lord Nicholls seemed to recognise too, as demonstrated by a number of questions he put to counsel. On the policy issue, counsel for the defendant argued that permitting medical lost chance damages claims would cripple the NHS, and therefore for policy reasons should be rejected. It was too radical a step for the Lords to take, and should be left for Parliament to legislate on if it wished to do so. Counsel made frequent reference to the Government Consultation document "Making Amends" in his argument. Overall I find it a little tricky to predict which way the Lords will go, based upon the questions they asked and the attitudes they seemed to demonstrate over the 2 days of the hearing. On day 1, I thought they were anti-lost chance when questioning the appellant's counsel, but in fact they gave (in my opinion) the defendant's counsel a rougher ride. In particular they seemed concerned at the discrepancy between the treatment of lawyers and doctors, and they didn't seem to find the policy arguments drawn from "Making Amends" particularly strong. I would hesitate however to say that overall they were sympathetic to the appeal. I found it a bit like trying to determine a hand of cards by watching poker faces. It's worth adding that, of all the bench, I thought that Lord Hoffmann was particularly on the ball. He was familiar with Helen Reece's article and Jane Stapleton's "gist of the action" concept. He kept returning to examples involving rolling dice, and had clearly thought of the issues of statistics involved before the hearing had begun. I was troubled by some comments from the bench that seemed to equate Gregg's case with Hotson's, as I have always maintained that, whatever the actual medical evidence in that case, the Lords treated the case as a deterministic one. I hope that any confusion about the nature of the case is not apparent when judgements are delivered. I hope the foregoing is of interest to causation and medical negligence colleagues.
Regards to everyone, Martin Hogg ----------------------------------------------------------
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