Date: Thu, 10 May 2007 12:13

From: Andrew Tettenborn

Subject: Good news/bad news

“If you ask your quack for a diagnosis, what is his duty?”

The simple answer is that it is to exercise reasonable care to provide an accurate diagnosis. Assuming that there has been a failure to exercise reasonable care, what the loss is, and therefore whether you ought to have a claim, will depend on the consequences of the error.

The consequence a false negative is commonly that the patient’s physical/mental condition continues to deteriorate or cannot be improved when it would have been improved with prompt diagnosis and treatment. If the patient’s prospects of successful treatment were less than 50% at the time of the error then we are into the realm of lost chances [which I think we should ignore for present purposes, otherwise we’ll go off on another tangent]. If they are more than 50% then the patient is entitled to damages for the damage (i.e. difference between what has happened and what should have happened with an accurate diagnosis). This is a basic, straightforward, negligence claim in the medical context (duty, breach damage). Now, let’s say that as a result of the negligent failure to diagnose/treat the patient becomes depressed due to the deterioration in his condition and commits suicide. Is the doctor liable for the death? The answer would seem to be yes, provided it can be characterised as a foreseeable consequence of the breach: deterioration -> depression -> suicide (if the depression is foreseeable, then so will the suicide be foreseeable: Corr v IBC Vehicles Ltd [2006] EWCA Civ 331; [2006] 2 All ER 929 - claimant’s husband’s suicide did not break the chain of causation between the negligence and the consequences of the suicide. The defendant’s responsibility for the effects of suicide depended on whether it flowed from a condition for which the defendant was responsible).

With a false positive the result could be precisely the same. Doctor tells patient, incorrectly, that he has only six months to live, and will die a lingering, painful death (I accept that doctors do not usually add this detail to their diagnoses, but some conditions lead to notoriously unpleasant deaths: mesothelioma, throat cancer, CJD, to name but three). Patient decides (without necessarily being clinically depressed) that he really cannot face that prospect and takes his own life. Doctor liable for the death? I cannot see that there would be any difference from the missed diagnosis situation. Change the false negative diagnosis and the consequences may be different but just as devastating. Let’s say the false negative is that the patient has a sexually transmitted disease. Patient’s spouse cannot cope with the belief that patient has been unfaithful; marriage breaks down, with all the financial, emotional and possible health consequences (often depression) associated with that. Doctor liable for the breakdown of the marriage? Well, why not? It is just as foreseeable as the patient’s suicide from depression caused by the false positive diagnosis. To say that the scope of doctor’s duty is limited to “telling you how to treat your body or possibly mind”, and he is not engaged to be a marriage counsellor, seems to me to be about as relevant as saying that the doctor who gives the false positive cancer diagnosis is not engaged as a psychiatrist and is therefore not responsible for the patient’s subsequent mental state.

Now you can, of course, limit the scope of a defendant’s duty (a la SAAMCO) as much as you like, depending on where you want to draw the line of responsibility. The difference between the negligent diagnosis in Lord Hoffmann’s example in SAAMCO (the negligent diagnosis that the mountaineer’s knee was in a fit state to go on an expedition, where the mountaineer sustains an injury related to mountaineering, but not his dodgy knee) and the “good news/bad news” patient is that the mountaineer would have been going on his expedition in any event – he did not suddenly take up mountaineering as a result of the negligent diagnosis. All that the negligence did was fail to stop him going on that particular expedition when he suffered his unrelated injury (i.e. unrelated to the dodgy knee). The “good news/bad news” patient changed his position entirely on the basis of the negligent false positive. The prudent financial habits of a lifetime were cast aside on the basis that he could not take his cash with him, so he might as well enjoy it while he could. That is just as rational a response as the patient who (having received the same false positive diagnosis) decides that he could not face a painful death and who then takes his life. The difference comes down to the nature of the damage (death vs no cash).

Michael has lost me here. I can't see any difference, SAAMCO-wise, between deciding not to cancel a pre-booked expedition and booking a new one. Hoffmann in SAAMCO can't have been wanting to have a different decision in the knee case according to the precise date of when the mountaineering jaunt was booked with Trailfinders or whatever.

As regards the suicide analogy, if I may say so Michael has put his finger on the point: death vs no cash. I'm just about OK with allowing the estate to sue for the suicide: doctors, after all, exist to preserve health & life. But it seems to be there is a difference, and an important one, between death and no cash. I think it's entirely plausible to say a doctor has nothing whatever to do with advising me how to spend my money. The fact that my expenditure in reliance on his (mis)diagnosis is foreseeable, or even natural, is beside the point.

There are many situations, even within the tort of negligence, where this difference would validly produce a different outcome. In the case of a negligent false positive medical diagnosis, however, I’m not convinced that it should. If this needs support, then I would fall back (again) on Lord Devlin’s comments in Hedley Byrne: “This is why the distinction is now said to depend on whether financial loss is caused through physical injury or whether it is caused directly. The interposition of the physical injury is said to make a difference of principle. I can find neither logic nor common sense in this.”

Incidentally, with regard to Robert's suggestion, I doubt very much whether the letter giving the “good news/bad news” patient his prognosis contained a disclaimer. This is not standard practice in the NHS, and it would be very unusual for one to be included, not least because any disclaimer in respect of personal injury or death would not be valid (Unfair Contract Terms Act 1977, s. 2(1)) – and doctors are dealing mostly with death and personal injury – and a disclaimer in respect of financial loss would be subject to a reasonableness test (ibid, s. 2(2)). We also know that a disclaimer will not necessarily be treated as negativing the Hedley Byrne assumption of responsibility, given the existence of s. 2(2) (see Smith v Bush).

--
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England

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