Importance of Loss of Chance in Negligence Claims - Essay Example

Loss of Chance Module Module Number: Academic Year: Seminar Essay Question: Importance of Loss of Chance in Negligence Claims Student Name/ Number: Loss of chance in negligence claims Gregg v Scott [2005] UKHL 2 is a significant tort law case which raised the nature of precarious conditions coupling decisions which call for granting of claims for loss of chance. The English case law was in connection to an injury upon the claimant’s person. In a narrow majority decision of 3:2, the court followed the precedent set in Hotson v East Berkshire Area Health Authority [1987] AC 750, in which claims for loss of chance were disallowed by the court1. The claimant in the case of Gregg v Scott noticed a swelling in his arm. He then sought the input of his doctor regarding the issue, but the doctor negligently screened for the condition as harmless, when it was a serious cancerous condition. The misdiagnosis resulted in the postponement of any treatment plans by nine months, during which time, the claimants health worsened and the cancerous cells spread to other parts of the body. The resulting condition limited his chances of leading a healthy life from 42% to 25%. The procrastination also prompted the claimant to seek immediate chemotherapy treatment. Having gone through a high dose treatment, the claimant filed for damages over his loss of a chance of leading a healthy life after almost a decade. Despite the striking out of the petition by the court, the dissenting opinion provided by Lord Nicholls regarding the loss of chance arguably stood out. In a minority decision, Lord Nicholls’ argued that the claims for the loss of a chance ought to have been granted by the court because human life is precious and should not be subject to speculations. Lord Nicholls faulted the majority decision, which held that the patient could only be awarded damages for loss of chance of treatment if his initial likelihoods of regaining his health had been over 50%, saying that the court’s reasoning was an injustice. He argued that this skewed application of law is dangerous in the current century, where every human life counts. He added that human life is precious; therefore, the loss of a 45% likelihood of regaining a healthy life is as legally and logically sound as losing 55% chances of recovery. In both situations, Lord Nicholls observed, the defendant-physician was in violation of his fiduciary obligations to his patient; that, the patient was more disadvantaged either way and could not avoid a deterioration of his life2. Lord Nicholls argued that the premise of awarding a remedy in one case (with over 50% chances of survival) and the refusal of claims for the preservation of a life (whose chances of survival is less than 50%) fail the justice and fairness test. His argument that disallowing of claims for an individual whose chances of surviving are less than 50% (in this case 45%), would practically render the duty of physician useless is valid, because many practitioners could be more negligent in their work because they have the legal protection. In light of the rights of all parties involved, it would be logical and legal, according to Lord Nicholls, to grant damages for loss of chance to patients, regardless of the likelihood of their survival3. I support compensation for loss of chance in negligence cases because the principle enables injured parties to reclaim damages that are commensurate to the benefits that they would have enjoyed had there been no negligence to their detriment4. Even though, loss of chance is basically hypothetical in terms of calculating the outcomes of such claims, I believe in the doctrine because it helps claimants or third parties to enjoy benefits that are similar to a fulfilled duty of care that would avoid losses upon the party in question. In light of these purposes, the alternative restitution and reliance forms of damages are usually geared towards rightfully compensating the victim or a third party for loss of expectation5. Generally, while a loss of chance is granted when the expectation was foreseeable on a contractual agreement, it is not usually so in the tort law6. This is because most cases involving tort law have been revolving around medical negligence, and as such the duty of care to the injured party is oftentimes considered as the nexus between the parties and the cause for the awarding of such damages7. I believe that if there were no compensation for loss of chance, professional negligence would be legal. There would be no other way to prompt professionals to ensure competency in their services, especially in sectors that are very critical to human life such as medical care and transport. In contractual agreements, I believe that compensation for loss of chance claims for negligence are important because, if granted, they would put the injured party in the same place as they would be in the event that the other party had performed their duties as required under the contract8. I believe the damages protect parties who are on the verge of or have incurred a loss following the others failure to fulfil their obligations. In general, I believe the doctrine is important because it covers sustained losses arising from any violation including non-monetary losses such as disappointment, psychological problems, and damaged image among others, provided there is proof on the balance of probabilities. Notably, these injuries are very serious but cannot be compensated for via any other legal means9. Owing to the calculation of the damages in respect with the reasonable expectations of the aggrieved party, I believe the process of awarding the moneys is beyond reproach, in the sense that it offers no general safeguards for parties who are dissatisfied with a service midway into the performance of a contract10. In most cases, courts emphasize that both parties are under the obligation to accept the actual results of agreements formed on a voluntary basis11. In addition, even when the court has established that an accused party was in breach of the agreement, the ruling in Addis v Gramophone Co Ltd [1909] AC 488 disbarred the awarding of punitive damages, as this would be against the original contract or the terms under which the duty of care would have been performed. The majority decision in the case of Gregg v Scott [2005] UKHL 2, quashing an attempt to claim compensation for loss of chance was not kinder to the medical profession; rather, it set a precedent that a patient whose chances of survival are below 50% could not validly be awarded damages arising from a delay in effective diagnosis because his expectations of an extended healthy life were too speculative and the injury could not be entirely blamed on the medic. The law is not lenient to medical professionals because its application is based on the general cardinal rule for awarding all damages for loss of chance arising from professional negligence, which is for the claimant or the third party to prove to the court that they would have benefitted more from the duty, but for the negligence of the defendants. In medical negligence claims, this principle implies that a claimant must prove that the doctor’s negligence was the cause of their poorer health. Unfortunately, this is more difficult to prove in medicine than in other professions, hence the perceived leniency12. In the decision on Gregg and Scott, the law was not kinder to the doctor because any reasonable doctor could have misdiagnosed the Hodgkins Lymphoma disease in its initial stages. Besides, the claims could not be granted because the case was more of an afterthought. The general rule of applying for compensation is that the claims must be brought up within a reasonable time. But in this case, the majority decision observed that the plaintiff brought the case almost a decade after the patient’s death, hence his limited chances of success13. The majority verdict in Gregg v Scott was informed by the precedent set in Hotson v East Berkshire Area Health Authority [1987] AC 750. The two cases might be seen as being more lenient to health care providers, but in the real sense they are not. The only reprieve for doctors is that they are usually faced with pre-existing health complications, which require of the plaintiffs, substantial evidence to effectively prove that the doctors’ negligence were the cause of the injury14. In Hotson v East Berkshire Area Health Authority, the House of Lords held that the plaintiff could not prove on the balance of probabilities that hospital’s negligence and the subsequent violation of the duty of care was the cause of the necrosis condition claimed in the case. In this case, the court relied on professional reports which showed that it was 75% clear that the ensuing medical condition was the result of the original fall and not the hospital’s alleged negligent diagnosis to disallow the damages15. Notably, unlike in medical negligence claims which are harder to prove, the decision in the case of Chaplin v Hicks [1911] 2 KB 786 is an important precedent, which granted damages for loss of chance at a lower evidentiary threshold, because it was easier to establish the causation. The plaintiff was a performing artist who had joined a beauty competition, which Hicks had organized by inviting potential applicants through print media. The audiences were expected to select the top 50 performers from the list, who would then be reduced to 12 for employment upon success in the interviews. But despite having made it to the top 50, the claimant was denied a chance to make it to the interviews due to lateness in the delivery of the interview letter16. This prompted her to file for damages arising from the loss of chance. The jury awarded her £100 in damages, and a subsequent appeal by the defendant claiming the award as too speculative was dismissed by the trial court. In the court’s observation, at the least, the plaintiff might have had 25% chances of passing the interviews, setting the stage for her employment. However, her chances of success might have been arguably higher than that, as the defendant could not prove to the court that she could not have made it to the final 12. In Allied Maples Group Ltd v. Simmons & Simmons [1995] 1 WLR 1602, the court partly limited the effectiveness of the precedent set in Chaplin v. Hicks. In Allied Maples Group Ltd, the court heard that a lawyer’s negligence made the claimant to suffer from the loss of chance of negotiating a fairer deal. In its decision, the court created two tests for awarding damages: a) if the claimants could corroborate on the balance of probabilities that they had the capacity to return to a negotiation table with the third party, and; b) that the outcome of the new negotiation would be better, then the court should be obliged to calculate and grant compensation for the lost opportunity17. The decision sought to limit the entitlements of the claimants when seeking the damages in a manner that may be construed as leniency to medical practitioners. However, the conditions set in Allied Maples Group Ltd can be applied in business negotiations and other contracts, but not in medicine. Allowing a patient with a background in medicine to “renegotiate” their own treatment plan can be disastrous if not impossible. In addition, unlike the harder to prove medical cases, economic cases normally require lower evidentiary thresholds for a successful award for the lost opportunity18. In Kitchen v. Royal Airforce Association [1958] 2 All ER 241 an advocate did not comply with time constraints regarding the issuing of writs to the widow of an accident victim. The claimant brought claims for damages against the solicitor for her lost opportunity. The facts made the court more certain that the injury was the result of the negligent lawyer and the only question was to determine the amount of damages that she would be reasonably entitled to19. The court then, established that she stood a chance of suffering no injury, but maintained that as a spouse to the deceased she had been a victim of lost opportunity and deserved compensation for the loss. Generally, in these examples of English case law, it is evident that the bar for is higher than in other country when it comes to awarding damages for loss of chance20. In some Australian jurisdictions, the Lord Nicholls’ reasoning reigns supreme, even though not fully, when dealing with loss of chance claims. In the case of Rufo v Hosking [2004] NSWCA 391 involving medical negligence claims, the court’s approach was that an aggrieved party would rather benefit from a higher percentage of survival than lose the whole compensation arising from medical error, provided there is evidence pointing to an injury. In light of this, the victim’s chances of survival being below 50% do not arise. If negligence limited the likelihoods of one’s survival, the courts normally employ mitigated claims for the percentage of the loss. In the United States, the Supreme Court of Massachusetts revisited the loss of chance claims for medical negligence in the case of Matsuyama v Birnbaum [2008] MASS 452. The case had been filed by the deceased’s estate more than five years after the death of the victim, in a manner that could have been disallowed by English Courts in keeping with the precedents of Hotson and Gregg. Regardless, US courts limit the damages for medical cases to victims of unfavourable outcome, as opposed to the English case law that includes impending injuries as well for compensation21. In the Matsuyama’s case filed against Doctor Birnbaum, an expert witness gave evidence that the defendant had violated the duty of care in failing to order for proper diagnosis of the patient, even after he was sure that he was treating a cancerous disease. The plaintiff argued that, but for the negligence, Matsuyama would not have lost the chance to secure better treatment on time. The jury established that the doctor was negligent, and granted the plaintiff’s prayers. The court established that in 1995, the deceased had 37.5% chances of survival. Therefore, the damages were calculated as 37.5% of $875,000 (value of a full life lost), but was then adjusted downwards to $281,310. In addition, the court awarded $160,000 in injuries arising from psychological injuries that the plaintiff suffered as a result of the patient’s illness and death22. Conclusion Generally, compensation for loss of chance puts a victim of injury in the same position as he or she would be, if the duty of care owed to them was observed by the parties they accuse of a breach or breaches. I support the principle because it enables a claimant to recover damages from an accused party in a manner that is not generally punitive to defendants, but based on ensuring professional competency in the provision of services. In addition, I support the evidentiary rule because it protects defendants from claimants who are merely unhappy with the performance of a contract. Many of the cases that have been resolved by loss of chance damages are those that involve serious breaches, some of which have cost lives or substantial pecuniary losses that must be regulated by common law. The majority decision in Gregg v Scott was not a manifestation of a law being kinder to the medical profession; rather it showed that in medicine, linking causation of an injury to physician negligence is immensely difficult. The main reason for the difficulty in lodging successful claims is that doctors are normally faced with pre-existing medical conditions; therefore, the resulting injuries cannot be entirely blamed on them. Bibliography Borgmann, Caitlin E., ‘Appellate Review of Social Facts in Constitutional Rights Cases,’ [2013] 101 CLR 1185 Cridland, Simon, ‘Gregg v Scott: the lost chance of a loss of a chance, [2005] 11 CR 138 Fordham, Margaret, ‘Loss of Chance Rules and the Valuation of Loss of Chance Damages,’ [2009] 15 JLE Frasca, Ralph, ‘Loss of Chance-A Lost Opportunity?,’ [2005] SJLS 204 Gooch, Jeffrey D., and Grant, Megan J., ‘Loss of Chance Damages Brought to Life,’ [2012] 25 UBJ 20 Grundmann, Stefan, ‘The Fault Principle as The Chameleon Of Contract Law: A Market Function Approach,’ [2009] 107 MLR 1583 Harvard Law Review, ‘Tort Law -- Loss of a Chance Doctrine -- Massachusetts Supreme Judicial Court Accepts Loss of a Chance in Medical Malpractice Suits. -- Matsuyama v. Birnbaum, 890 N.E. 2d 819 (Mass. 2008),’ [2009] 122 HLR 1247 Lowry John, and Rawlings, Philip, ‘That wicked rule, that evil doctrine ...: Reforming the Law on Disclosure in Insurance Contracts,’ [2012] 75 MLR 1099 Madden Bill, and Cockburn, Tina, ‘Loss of chance in Australia: Tabet v Gett [2010] HCA 12,’ [2010] 16 CR 217 Noah, Lars, ‘An Inventory of Mathematical Blunders in Applying the Loss-of-a-Chance Doctrine,’ [2005] 24 RL 369 Oliphant, Ken, ‘Loss of Chance in English Law,’ [2008] 16 ERPL 1061 Rabinovitz, Barbara, ‘Loss of chance often surfaces in medical-malpractice cases,’ [2006] SCCBR 1 Peel, Edwin, ‘Loss of a Chance’ Revisited: Gregg v Scott,’ [2003] 66 MLR 623 Speaker, Paul, ‘The application of the loss of chance doctrine in class actions,’ [2002] 21 TRL 345 Stapleton, Jane, ‘Loss of the Chance of Cure from Cancer,’ [2005] 68 MLR 996 Stevens, John Paul, and Greenhouse, Linda, ‘A Conversation with Justice Stevens,’ [2012] 30 YLPR 303 Von Bar, Christian, (2009), Non-contractual Liability Arising Out of Damage Caused to Another, European Law Publishers, London Voyiakis, Emmanuel, ‘The Great Illusion: Tort Law and Exposure to Danger of Physical Harm,’ [2009] 72 MLR 909 Weigand, Tory A., ‘Loss of chance in medical malpractice: A look at recent developments,’ [2003] 70 DCJ 301 Wishart, Gordon C, and Axon, Andrew, ‘Proof of causation: A new approach in cancer cases,’ [2013] 19 CR 130 Zorana Zupac, Wendy, ‘Mere Negligence or Abandonment? Evaluating Claims of Attorney Misconduct after Maples v. Thomas,’ [2013] 122 YLJ 1328 Read More