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A Novel Approach to Loss of a Chance Cases 2019 - Dr Mark Burgin

25/01/19. Dr. Mark Burgin BM BCh (oxon) MRCGP discusses how the law of causation has become inconsistent and contrary to natural justice whilst trying to decide loss of a chance cases.

It does not feel right to deny payment for the death of a child with 30% chance of survival even if the delay was gross but to pay out when there was a short delay and 51% chance.

Equally where the breach would have caused some damage why should the claimant fail because the amount of damage cannot be determined?

Systems analysis is based upon mathematics and is used widely in information technology to solve intractable problems and can be applied to the law.

Legal precedent can act as a mental block to making progress as the judge will try to follow the logic in previous cases even where it leads to a dead end.

In this article I revisit the classic cases and consider how legal thought would have developed had they been decided using a systems analysis approach.

 

Hotson (1)

The facts of the case were that the child fell and broke his hip, there was a negligent delay and the hip necrosed because both main arteries to the hip were damaged.

It was agreed that if only one of the arteries was damaged then the hip would have survived and the claimant could only claim for pain suffering for the delay.

The question before the court was when the second artery was damaged at the time of the original fall or due to the delay but instead the experts suffered a roasting from the judge.

This case has caused confusion and debate because the arguments put forward have some virtue but they get in the way of the correct approach.

The artery was damaged or not damaged, the claimant did not lose the chance to save the hip if the artery was already damaged and any damage after the fall was 100% due to the breach.

 

Gregg v Scott (2)

The facts of this case were that the claimant had non Hodgkin’s lymphoma (a treatable cancer) presenting as a lump under the arm.

It was agreed that the delay had reduced his life expectancy at 10 years was 42% to 25% which includes death from other causes.

Choosing a different time scale would have generated different figures so the reduced life expectancy at 5 years might have been 62% to 45%.

The judges have been drawn into the medical construct of 5 or 10 year survival without considering whether this is best or even the right way of looking at the problem.

The life expectancy in days from the date of the breach for the average patient with the disease modified by the patient’s individual circumstances gives a more reliable result. (3)

 

Wilsher (4)

A junior doctor working a special care baby unit placed an oxygen monitor into the umbilical vein rather than the artery so that oxygen levels were too high.

It was agreed that retrolental fibroplasia (an eye problem) is recognised as being caused by high oxygen but that it is not the only cause.

The question was whether the raised oxygen had caused or materially contributed to the retrolental fibroplasia but the House of Lords said it was not possible to say.

Whilst medically it is the prime cause of the condition and even if there were other causative factors it would have materially contributed to the condition.

Excess oxygen always causes some harm to a child as it leads to increased free radicals in the blood and tissues so a percentage due to that oxygen can be assigned to each complication.

 

Conclusions

The first test is whether the causes can be separated, where the negligent and non-negligent causes could have caused the loss it is a fact for the court to determine.

The second test is whether the loss can be estimated in terms that can be compensated such as the number of days lost by the claimant due to the breach.

The third test is whether the breach caused a material contribution to the loss so that a percentage value can be assigned to the worsening due to breach.

The decision in Fairchild confirms that this approach applies when all causes are of the same type but the law still falls short when dealing with multiple causes.

 

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

 

  1. Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909

  2. Gregg v Scott [2005] UKHL 2

  3. Burgin 2017 Using Mathematics in Loss of a Chance Cases www.pibriefupdate.com

  4. Wilsher v Essex Area Health Authority [1988] AC 1074

  5. Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22

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