Date: Fri, 11 May 2007 12:58

From: Duncan Sheehan

Subject: Good news/bad news

Dear all,

I'd be inclined to agree with this - it may be that there are foolproof criteria by which the doctor decides whether I'm going to die in 6 months or not, but I'm not sure that matters if it's presented as a matter of opinion. I talked about this sort of case a bit in my first ever publication in the 2000 Legal Studies. My example, which I think, is materially identical was a walk in the countryside. Turn to my friend and say "I think there are 50 cows in the field". My friend can't rely on that - I have disclaimed responsibility. There are several cases of the "I think" variety. Anderson v Pacific Fire and Marine Insurance (1871) LR 7 CP 65 is one. There was a letter from the captain and pilot of a ship saying they believed a particular anchorage to be safe. It obviously wasn't, and Byles J said it was at best a representation that two people considered it safe (which I guess means that if the doctor didn't really believe that I was going to die, I have a claim of some sort). There is, as I say, an implied disclaimer of responsibility in the words "I think".

Duncan

Dr Duncan Sheehan
Senior Lecturer in Law
Director of Research
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom

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From: BEEVER A.D.
Sent: Thursday, May 10, 2007 2:33 PM
To: Robert Stevens; Hedley, Steve
Subject: RE: [Fwd: [Fwd: ODG: RE: 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.

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