What survival chance makes claims succeed?

A non-Hodgkins Lymphoma sufferer lost his claim for damages for negligent delay in diagnosis because his prospect of surviving cancer for 10 years were reduced from 42% to 25%. Clare Jaycock, partner in the health group at Reynolds Porter Chanberlain tells Grania Langdon-Down why the courts support the traditional principle that a claimant must have more than a 50% chance of survival to establish causation

A man whose chances of surviving cancer for 10 years were reduced from 42% to 25% by a delay in diagnosis cannot claim damages because his chances were already too slim for the delay to have worsened his position, according to a long awaited judgement by the House of Lords. Clare Jaycock, partner in the health group at Reynolds Porter Chamberlain, says the majority judgment upheld the traditional principle that a claimant must have had a more than 50% chance of survival to establish causation in order to satisfy the balance of probability test. 

    In Gregg v Scott, the claimant, Malcolm Gregg, had non-Hodgkins Lymphoma. A negligent delay in its diagnosis reduced his prospect of survival for ten years from 42 % to 25 %. He lost his claim in the High Court and the Appeal Court on the basis that his chance of survival was never in excess of 50%. Jaycock says: “The Court takes a very black and white view. If, but for the delay, a claimant has more than a 50% chance of surviving, the court assumes he will survive. If the chance is 50 % or less, the court assumes the opposite. On this basis, Mr Gregg would not survive in any event and therefore the delay in diagnosis hasn’t worsened his position.

   “Those representing claimants argued that such an approach was clearly nonsensical. If you ask any man in the street if they would rather have a 42 % or a 25 % chance of survival, they would say 42 %. Where a negligent delay in diagnosis reduces the percentage, you should be able to claim for it.”

   The Lords reached a three to two majority in dismissing the appeal. Jaycock says: “The concerns of Lords Hoffmann, Phillips and Lady Hale were that if they allowed claims where the percentage chance of survival was always less than 50 % , it would lead to de minimis claims and it would be very difficult to quantify the claims. Lord Nicholls and Lord Hope, on the other hand, argued that if a person’s chances of survival had been compromised, there should be a way in which they could be given compensation.”

   She says the Gregg judgment has been eagerly awaited because it followed on from two other Lords’ judgments which created exceptions to the established principle of causation. In Chester v Afshar, the claimant underwent surgery where there was a very small risk that she would sustain severe neurological damage. She wasn’t advised of this risk, went ahead with the surgery and the risk materialised. She would probably have undergone the surgery even if advised of the risk, but would have deferred it to a later date, when the risk would have been the same. The Lords ruled by a majority that normal principles of causation can be disregarded where there are policy reasons to allow a claimant to succeed. In this case, the policy was the desirability of properly informed consent to clinical procedures.

   Jaycock says: “The defendants argued that had she had the same operation on another day, the risk would have been the same. The claimant argued that as it was such a small risk, it probably would not have happened if she had had the operation on a different day. The Lords found for the claimant, a decision which a lot of commentators say has no logic to it."

   In the earlier case of Fairchild, the Lords decided that an employee who became ill after breathing in a speck of asbestos dust should be compensated even though he could not prove in which of two workplaces it happened. The Lords said both employers should be liable.

  Jaycock says: “There was a feeling in the legal community that the Gregg v Scott decision could have taken the exceptions one step further. However, the Lords have kept the status quo, although clearly the Judges were very torn. On the claimants’ side, people are poring over the fine print to see if there is any route whereby they could bring a successful claim in similar circumstances to those of Mr Gregg. But, if anything, it is a victory for defendants. It preserves the established principle of causation and is not going to open the floodgates for loss of a chance claims. It was thought that the decision had the potential to affect such claims against other professions, but it is a very narrowly based judgment restricted to clinical negligence claims.”  (31/01/05)

 

 

Case annotations in other services:-
Gregg v Scott BLD 2801050331; [2005] UKHL 2