Coherence of medical negligence cases. A game of doctors and purses

Medical Law Review

Volumn 14, Issue 1, 2006, Pages 1-21

  Green, Sarah ^a  

^a UNIVERSITY OF BIRMINGHAM   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ECONOMICS; HUMAN; INFORMED CONSENT; LEGAL ASPECT; LEGAL LIABILITY; MALPRACTICE; PHYSICIAN; REVIEW;

DUTY TO WARN; HUMANS; LIABILITY, LEGAL; MALPRACTICE; PHYSICIANS;

EID: 33644972031     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwi034     Document Type: Review

References (90)

1. Fairchild v. Glenhaven Funeral Services Ltd [2003] 1 A.C. 32 at 36 per Lord Nicholls of Birkenhead.
2. [2005] U.K.H.L. 2.
3. [2005] 1 A.C. 134.
4. Supra, n. 1.
5. [1987] A.C. 750, H.L.
6. Supra, n. 2 at 90.
7. Ibid. at 79.
8. See Barnett v. Chelsea and Kensington Hospital [1969] 1 QB 428 and, for an interesting discussion of the point,
9. see C.H. Schroeder, 'Causation, Compensation and Moral Responsibility' in D.G. Owen (ed.), Philosophical Foundations of Tort Law (OUP 2001) at 347-61.
10. See, inter alia, P. Cane, The Anatomy of Tort Law (Hart 1997) at 171-6
11. and A. Honoré, Responsibility and Fault (Hart 2002), Chapter 5.
12. Per Lord Steyn at 19, per Lord Hope of Craighead at 61 and per Lord Walker of Gestingthorpe at 94.
13. Also, see R. Stevens, 'An Opportunity to Reflect' [2005] 121 L.Q.R. 189 at 190.
14. Supra, n. 3 per Lord Hope of Craighead at 61.
15. For a more detailed discussion of why the two questions are so different, see infra, section III.
16. At 84; see also Lord Hope of Craighead at 61, Lord Walker of Gestingthorpe at 99 and Lord Steyn at 22.
17. The minority judgments, on the other hand, are clearly defined by their refutation of the idea that causation has been established - see Lord Bingham of Cornhill at 8 and Lord Hoffmann at 32.
18. See also Lord Steyn's reference at 22 to A. Honoré, 'Medical Non-Disclosure: Causation and Risk: Chappel v Hart' (1997) 7 Torts Law Journal 1 at 8, where Professor Honoré asks whether or not Chappel is a case where the courts should allow recovery 'in the absence of a causal connection'. His Lordship's analogy suggests that he believes such a connection to be absent also in Chester.
19. Chester v. Afshar [2003] Q.B. 356 at 7 per Sir Denis Henry.
20. Ibid. at 7 per Sir Denis Henry.
21. Ibid. at 7 per Sir Denis Henry.
22. Ibid. at 5 per Sir Denis Henry.
23. This point also challenges the arguments of Lord Hope of Craighead at 87 and Lord Walker of Gestingthorpe at 101 that to deny recovery in a Chester-type situation is to drain the duty of content in cases where it is most needed and to deprive the honest claimant of the law's protection. It is difficult to see how such a duty can be most needed in a situation where, as here, its breach makes no difference to the ultimate outcome. As for the issue of honest claimants, this is dealt with by Stevens, supra, n. 10, as he correctly points out that the risk of fraudulent claims is not an appropriate determinant of fundamental legal principles.
24. See, inter alia, supra n. 3 at 14 per Lord Steyn, at 54, 56 and 87 per Lord Hope of Craighead, and at 92 per Lord Walker of Gestingthorpe.
25. Supra, n. 3 at 14 per Lord Steyn.
26. Supra, n. 3 at 87.
27. This is somewhat unsurprising, given its context - Lord Hope uses the statement to preface his conclusion, at 87, that 'On policy grounds ... I would hold that the test of causation is satisfied in this case' and that the injury 'can be regarded as having been caused, in the legal sense, by the breach of that duty'. See section IV for a detailed discussion of various judicial treatments of the causal questions raised in both cases.
28. Supra, n. 3 at 9 per Lord Bingham.
29. Supra, nn. 8-9.
30. Supra, n. 2 at 217 per Baroness Hale.
31. Supra, n. 2 at 68 per Lord Hoffmann.
32. See K. Amirthalingam, 'Causation and the Gist of Negligence' [2005] C.L.J. 32 at 33
33. and see supra, n. 15.
34. It is not suggested here that the two breaches are identical, but that the duties in both cases exist for the purposes of protecting the interests of the patient and, if the breach of one of those does not call for a modified approach to causation, then there should be a very good reason advanced as to why the breach of the other should. If the result in Chester is, in fact, correct, this would have remarkable implications for Mr Gregg. Effectively, it would mean that, although he could not recover for Dr Scott's total failure to provide appropriate treatment, he would have been able to recover from a defendant who had done a better job in correctly diagnosing and treating him, failing only at the stage of warning his patient of the risks inherent in following his advice, regardless of whether or not the following of that advice worsened his physical condition.
35. See also infra, n. 65.
36. Supra, n. 2 at 192 per Baroness Hale. For a more detailed discussion of the Fairchild comparison,
37. see infra, section V.
38. The House of Lords had not then delivered its judgment in Gregg.
39. Supra, n. 3 at 20 per Lord Steyn.
40. Supra, n. 3 at 22 per Lord Steyn, at 87 per Lord Hope of Craighead and, less explicitly, at 101 per Lord Walker.
41. Supra, n. 3 at 9 per Lord Bingham of Cornhill.
42. Sidaway v. Board of Governors of the Bethlehem Royal Hospital and the Maudsley Hospital [1985] A.C. 871 at 893.
43. Supra, n. 3 at 87 per Lord Hope of Craighead.
44. See also at 101 per Lord Walker of Gestingthorpe.
45. See also R. Stevens, supra, n. 10.
46. Supra, n. 3 at 21 per Lord Steyn.
47. See also Lord Hope of Craighead at 62 and, in a less explicit manner, Lord Walker of Gestingthorpe at 97-9.
48. (1998) 156 Australian Law Reports 517.
49. Supra, n. 3 at 39 per Lord Steyn.
50. Supra, n. 40 at 5 per Gaudron J.
51. Athey v. Leonati [1996] 3 S.C.R. 458 at 474,
52. referred to ibid. at 76 per Gummow J.
53. Lord Millet has suggested in both McFarlane v. Tayside Health Board [2002] 2 A.C. 59 at 114
54. and in Rees v. Darlington Memorial Hospital N.H.S. Trust [2004] 1 A.C. 309 at 123 that compensation be payable for a claimant's loss of autonomy per se. In essence, his suggestion is based on the idea that the law should recognise those who have been wronged by being deprived of some aspect of their personal freedom. In both of those cases, however, causation was not in question. Rather, the courts were concerned with the moral implications of awarding damages for the birth of a healthy child. It is unclear, therefore, whether the loss of autonomy argument would be appropriate to cases, such as those currently being considered, where the causal link between the wrong and the ultimate damage is what is at issue.
55. Supra, n. 43.
56. Supra, n. 3 at 30 per Lord Hoffmann.
57. Ibid. at 31 per Lord Hoffmann.
58. Supra, n. 40 per Gaudron J. Of course, in that case, Gaudron J.'s argument ran counter to that of the defendant's, who, whilst maintaining that all that Mrs Hart had lost was the opportunity to have her operation performed by someone else, further argued that this would have made no difference to her position because it did not increase the risk to her.
59. 'There was no suggestion here that Miss Chester was more at risk at the hands of Mr Afshar due to any lack of experience on his part than she would have been at the hands of anyone else.' Supra, n. 3 at 98 per Lord Hope of Craighead.
60. Supra, n. 3 at 8 per Lord Bingham of Cornhill.
61. Supra, n. 3 at 19 per Lord Steyn.
62. Such an argument would, therefore, be subject to the 'gambler's fallacy'. For a concise explanation of this phenomenon, see I. Hacking in An Introduction to Probability and Inductive Logic (CUP 2001) at 28.
63. Supra, n. 3 at 9 per Lord Bingham of Cornhill.
64. Supra, n. 3 at 31 per Lord Hoffmann.
65. Supra, n. 3 at 97 per Lord Walker of Gestingthorpe.
66. Supra, n. 3 at 51
67. and supra, n. 2 at 100,
68. Supra, n. 3 at 32
69. and supra, n. 2 at 68.
70. Mr Gregg's injury was 'within the scope of the doctor's duty to take reasonable care', supra, n. 2 at 104,
71. and Miss Chester's was 'within the scope of [Mr Afshar's] duty to wam' supra, n. 3 at 62.
72. (2003) 119 L.Q.R. 388.
73. Ibid. at NOTE 3.
74. Ibid. at 388.
75. See also J. Stapleton, 'Lords a Leaping Evidentiary Gaps' (2002) 10 Torts Law Journal 13.
76. Supra, n. 3 at 22 per Lord Steyn.
77. [2003] 1 A.C. 32.
78. The principle applied herein has its origins in the House of Lords' decision in McGhee v. National Coal Board [1973] 1 W.L.R. 1. For the sake of brevity, it will be referred to as the principle in Fairchild in the discussion that follows.
79. See supra, n. 62 at NOTE 86.
80. See I.M. Kennedy, 'The Fiduciary Relationship - Doctors and Patients' in P. Birks (ed.), Wrongs and Remedies in the Twenty-First Century (Clarendon Press 1996) at 116.
81. Supra, n. 2 at 217 per Baroness Hale.
82. See supra, n. 66 for an excellent discussion of the broader issues at stake.
83. Supra, n. 1 throughout, but particularly at 34 per Lord Bingham of Cornhill, at 42 per Lord Nicholls of Birkenhead, at 67 per Lord Hoffmann, at 114 per Lord Hutton and at 170 per Lord Rodger of Earlsferry.
84. Supra, n. 3 at 61.
85. [1987] 1 A.C. 1074.
86. The House refused to apply the principle (as the principle in McGhee, as it was then known) to a situation where the defendant's breach of duty had contributed one out of five possible causes of the claimant's injury. Lord Hoffmann later confirmed this position when he explicitly stated in Fairchild, supra n. 1 at 69-73, that the principle formulated therein would leave the decision in Wilsher unaffected.
87. For example, the pre-disposition of the claimant, the severity of the patient's condition, the skill of the surgeon, the nature of the surgery itself, but not, significantly, the day on which the procedure was carried out.
88. Supra, n. 1 at 60, although he was not alone in his call for restraint - see also Lord Nicholls at 37 and 43.
89. Supra, n. 1 at 34.
90. Supra, n. 3 at 9.