Date: Thu, 10 May 2007 14:59

From: Michael Jones

Subject: Good news/bad news

Just one more go on this one.

Andrew – if you think the false positive that leads to the patient’s suicide falls within the scope of the doctor’s duty, but the false positive that leads to the patient’s bankruptcy does not, then are we not just disagreeing about whether pure economic loss should be recoverable at all (on the assumption that the suicide is physical injury)? My point is that this argument was lost over 40 years ago in Hedley Byrne, and now we simply argue about when pure economic loss should be recoverable and when it should not. Given that English law does allow claims for pure economic loss against doctors in some situations (e.g. failed sterilisations resulting in the birth of a disabled child [Rees v Darlington]; and see also Hughes v Lloyds Bank plc [1998] PIQR P98, CA), the issue seems to be whether the “good news/bad news” patient should be another, not simply that he has not suffered any physical harm and therefore has no claim.

Robert – “If that is the case then the NHS should change its standard practice, as this case demonstrates. If this is standard practice in all cases, they are badly advised. Perhaps books on Medical Negligence law should make this suggestion?”

I would not presume to advise the NHS as to how it should go about informing patients that they have a fatal disease – at least not without a very prominent disclaimer of my liability. I suspect that if the NHS were to include disclaimers it would go down very badly with patients (and therefore the media/politicians – since everything in the NHS is regarded as a legitimate target for the press). Just imagine the public reaction to receiving a letter stating, in effect: “We think you are going to die, but if we are wrong about that we don’t accept any legal responsibility”.

Again, in practice, patients are not usually informed of their diagnosis by letter. They are usually told face to face by a hospital doctor, and the hospital doctor then writes to the patient’s general practitioner. Incidentally, you may recall that there was a case that reached the CA some years ago where the claimants objected to the fact that they had been informed by letter (as opposed to face to face) that there was a small risk that they had contracted HIV from a doctor who had treated them and had subsequently been diagnosed as HIV+. They alleged that they had sustained psychiatric damage as a result of the manner in which this perfectly accurate information had been given to them. Counsel for the health authority conceded that the defendants owed a duty of care (which was somewhat generous), but the action failed on breach of duty (see AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91, commented on, as it happens, by Andrew at (1997) 13 PN 70). You could see the argument that informing a patient of their actual (as opposed to the very remote possibility of a) fatal diagnosis by letter rather than face to face was negligent having more legs.

Michael

--------------------------------------
Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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From: Robert Stevens
Sent: Thu 10/05/2007 12:28
To: Jones, Michael
Cc: Andrew Tettenborn
Subject: RE: [Fwd: [Fwd: ODG: RE: Good news/bad news]]

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,

If that is the case then the NHS should change its standard practice, as this case demonstrates. If this is standard practice in all cases, they are badly advised. Perhaps books on Medical Negligence law should make this suggestion?

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

Of course, but this is not a case of death or personal injury.

- and a disclaimer in respect of financial loss would be subject to a reasonableness test (ibid, s. 2(2)).

Absolutely, but there is no doubt that this disclaimer, if properly drafted, would be reasonable in respect of this consequential loss, as this example itself shows.

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).

In principle it does negative the assumption of responsibility, otherwise the result in Hedley Byrne is inexplicable, unless the disclaimer itself is prohibited by legislation.

For myself, I'd consider Smith v Bush doubtful in principle, especially in the light of Williams v Natural Life Health Foods. It was never terribly easy to reconcile with D&F Estates, unless you took the view that there is one rule for negligent words and another for negligent acts, which was the very thing I had thought Hedley Byrne had said there was not. Following Williams I'd suggest that D&F Estates is right and Smith v Bush wrong. Certainly the reasoning of their Lordships in Smith v Bush is inconsistent with subsequent developments (indeed, I'd suggest, inconsistent with the reasoning in Hedley Byrne).

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