Date: Thu, 10 May 2007 18:52

From: John Swan

Subject: Good news/bad news

There is I think a large problem with Robert's contractual "solution", viz., that any contract will almost certainly have been made before the patient can be asked to sign or be given the disclaimer so that the disclaimer will come too late to be effective. In any case, I think that any disclaimer, particularly having regard to what I have just said, would have to be so worded that no one would be prepared to sign it. If the disclaimer is not signed (and, in many cases, even if it is), I would not put much money on the chance that it would be enforceable by the hospital or doctor, given the circumstances in which the patient is told or shown its terms. You would need, at the very least, to require the patient to have had independent legal advice.

John

-----Original Message-----
From: Robert Stevens
Sent: May 10, 2007 1:17 PM
To: Jones, Michael
Subject: [Spam?] RE: [Fwd: [Fwd: ODG: RE: Good news/bad news]]

Michael wrote

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.

This doesn't matter. There is no contract here, and so it should be perfectly possible for the hospital/authority to make clear the scope of its assumption of responsibility to the patient in the subsequent letter, assuming he hasn't blown the lot in the interim.

I am not suggesting a disclaimer in the form "we are not liable" but of the form "we are not liable for any financial commitments you may make as a result of this prognosis." Put another way, I think that if the defendant makes express the scope of their assumption of responsibility, which Andrew thinks is implicit anyway, this should be effective.

No doubt, as you say, economic loss consequent upon physical injuries should be recoverable, but where the claim for economic loss is dependent upon an assumption of responsibility the scope of that undertaking must be ascertained. I don't know of any easy way of establishing whether Andrew is right or wrong on this.

Although I don't think it is legally relevant, I think the attitude of the Daily Mail would be that this is perfectly reasonable. If statements of this kind are not, as is claimed, standard NHS practice, they should be.

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