Date: Thu, 10 May 2007 14:32

From: Allan Beever

Subject: Good news/bad news

For my part, I can't see why any disclaimer would be required. Giving a prognosis to a patient of the following kind "In light of the evidence, it is our opinion that you will live for x months" is not the giving of a guarantee that the patient will die in x months. It is not the assumption of responsibility for the patient ceasing to exist in x months. Moreover, it is surely common knowledge that prognoses are not always accurate. As such, in the case we are discussing, I would have thought that the patient could recover only if (not if) the hospital gave him the impression that he definitely was going to die in the stated time. But is that a plausible interpretation of the facts? Only if it were would we need to worry about whether the assumption included consequential loss, etc.

Of course, all this assumes that the assumption of responsibility model is the right one for this kind of claim.

Allan

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From: Robert Stevens
Sent: Thu 10/05/2007 13:55
To: Hedley, Steve
Subject: RE: [Fwd: [Fwd: ODG: RE: Good news/bad news]]

"Hedley, Steve" writes:

No doubt it would be possible to frame letters in a standard way which ensured that no reasonable person would rely on them, but is it really in the NHS's best interests to do this?

To be effective it is not necessary to draft the disclaimer in such terms that no reasonable person would rely upon the statement made. The lucky/unlucky guy may be behaving perfectly rationally according to the best evidence available to him in the letter (as he said on the telly "anyone would have done the same") even if there is a disclaimer as to liability for consequential economic loss.

I don't think the disclaimer would be effective if, because of the misstatement, he declined medical treatment which, we now know, would have saved his life. Although UCTA is one answer why not, I don't think that is necessary. If the misstatement results in physical harm he doesn't have to rely upon any assumption of responsibility. So, just as putting a neon sign on the top of my car saying "I hereby disclaim all responsibility towards pedestrians I carelessly run over" won't assist me in a claim made by someone who I injure even if they have read the sign, it won't help in the case of the misstatement where the loss is not 'purely' economic.

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