Gregg v Scott [2005] UKHL 2 (27 January 2005)

A doctor's negligent misdiagnosis of cancer reduced a patient's survival chance from 42% to 25%. The patient sued for this 'loss of a chance'. The House of Lords held that loss of a chance is not recoverable in clinical negligence cases.

Facts

The claimant, Mr Gregg, discovered a lump under his left arm. He consulted his general practitioner, Dr Scott, who negligently diagnosed the lump as a benign lipoma and did not refer him for further tests. Nine months later, Mr Gregg consulted another doctor and was referred to a hospital, where the lump was correctly diagnosed as a cancerous non-Hodgkin’s lymphoma. During the nine-month delay, the cancer had spread. Expert evidence established that had he been correctly diagnosed at the outset, his chance of surviving for a further ten years would have been 42%. As a result of the delay, this chance was reduced to 25%. Mr Gregg’s life expectancy was also reduced. He brought a claim in negligence against Dr Scott, not for causing the cancer, but for the reduction in his prospect of a favourable outcome.

Issues

The central legal issue before the House of Lords was whether ‘loss of a chance’ of a better outcome could constitute actionable damage in a clinical negligence claim. Specifically, the court had to decide if a claimant could recover damages for the reduction in their prospect of survival when their initial chance of survival was already less than 50% (i.e., not probable on the balance of probabilities).

Judgment

By a narrow 3-2 majority, the House of Lords dismissed the appeal, holding that the claimant could not recover damages for the loss of a chance in these circumstances.

Majority Opinion (Lord Hoffmann, Lord Phillips, and Baroness Hale)

The majority affirmed the traditional ‘all or nothing’ approach to factual causation. For a claim to succeed, the claimant must prove on the balance of probabilities (a greater than 50% chance) that the defendant’s breach of duty caused the damage. In this case, the ‘damage’ was considered to be the unfortunate outcome of a shortened life expectancy. Since Mr Gregg’s initial chance of survival was only 42%, he could not prove that, ‘but for’ the doctor’s negligence, he would probably have been cured. Lord Hoffmann distinguished this type of case from those involving economic loss (such as Chaplin v Hicks), where loss of a chance is recoverable. He reasoned that applying such a principle to personal injury would fundamentally alter the established law of causation.

I think that to reformulate the damage so as to describe it as the loss of a chance of a better outcome would be a semantic device, a rearrangement of the furniture, which would not solve any of our difficulties. … It would also be a major change in the law of personal injury and medical negligence.

Baroness Hale agreed, expressing concern over the policy implications, including the difficulty of quantifying such chances and the potential for a significant increase in litigation against the National Health Service.

Dissenting Opinion (Lord Nicholls and Lord Hope)

The dissenting judges argued powerfully that the law should recognise the loss of a chance of a better outcome as a distinct and recoverable head of damage. Lord Nicholls argued that it was unjust and nonsensical for a doctor’s duty of care to be rendered meaningless simply because a patient’s initial prognosis was poor. He contended that the real injury was the loss of the prospect of recovery itself, which was a direct consequence of the doctor’s negligence. He stated:

This reasoning is unacceptable. It is a discreditable bolt-hole for the negligent doctor. It is irreconcilable with the Bolam test… I would hold that a patient’s loss of a chance of a better outcome is a form of personal injury, and that this head of damage is recoverable in a medical negligence action. The chance need not be 50% or more.

Lord Hope also supported this view, arguing that the 42% chance was a valuable asset which the claimant had lost due to the negligence, and for which he ought to be compensated.

Implications

The decision in Gregg v Scott confirmed that the traditional test for causation applies in clinical negligence cases involving outcomes. It established that a claimant cannot recover damages for the loss of a chance of recovery if their original prospect of recovery was below 50%. The judgment maintains a clear, though sometimes harsh, line on liability, protecting medical professionals and the NHS from claims based on speculative possibilities. However, it has been heavily criticised for creating a situation where a blatant breach of duty that significantly harms a patient’s prospects may go without a legal remedy if the patient was already in a precarious state.

Verdict: Appeal dismissed.

Source: Gregg v. Scott [2005] UKHL 2 (27 January 2005)