This important case, involving a failure to diagnose cancer, challenged the established principle that a patient must prove that the Defendant’s action, or lack of it, caused an injury and not merely lost him/her the chance of avoiding injury.
When Mr Gregg discovered a lump under his arm he consulted his GP, Dr Scott, who reassured him that it was benign and nothing to worry about. A year later he consulted another GP and was referred to hospital where a diagnosis of non-Hodgkins lymphoma was made. By this time the disease had spread and Mr Gregg was in considerable pain. He initially responded well to high dose chemotherapy but then suffered a relapse.
This failure to diagnose cancer case went to trial and the judge found that the GP was in breach of his duty of care to his patient and that Mr Gregg would have had a 42% chance of survival if Dr Scott had made the correct diagnosis when first consulted. As a result of the GP’s failure Mr Gregg’s chance of survival had fallen to 25%.
However, Mr Gregg failed to satisfy the balance of probabilities test (ie > 50%) because with a chance of survival of only 42% he was unlikely to survive anyway and therefore had suffered no provable loss as a result of the GP’s negligence.
Mr Gregg appealed to the Court of Appeal claiming that he should be compensated for the significant reduction in his prospects of survival. However, the majority view was that liability for the loss of chance of a more favourable outcome should not be introduced into personal injury claims, and the Court found in favour of the doctor. A second appeal was then made to the House of Lords where the judgment of the Court of Appeal was upheld by a majority of 3 to 2 (January 2005).
This failure to diagnose cancer case challenged the existing law and had the potential to change significantly the way such cases are approached and valued. However, the effect of the judgement was to exclude recovery of damages for loss of a chance in clinical negligence cases.
JMW Medical Negligence Solicitors are able to deal with claims of clinical and medical negligence using both legal aid and the no win no fee scheme in appropriate cases. If you have suffered as a result of medical negligence JMW Solcitors offer a free advice session either personally or on the telephone and if after talking to us you decide not to take matters further you are under no obligation to do so and you will not be charged for our initial advice session.
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