Gregg v Scott

The Doctor by Sir Luke Fildes

Loss of chance, the balance of probabilities, and legislative reform become the focus of discussion in a matter bearing the superficial hallmarks of a linear tort claim, but that upon closer inspection, was approached in all the wrong ways.

Having consulted his local GP with concerns over a swollen lump beneath his armpit, the appellant was told that it represented little more than a lipoma (soft fatty lumps), and that no further investigation was needed, however a year later the appellant relocated before presenting the same symptoms to his new doctor, who despite reaching  a similar conclusion, took the step of referring him to submit a biopsy for examination.

Upon inspection of the sample it was quickly established that far from being harmless, the appellant was in fact suffering from Anaplastic Lymphoma Kinase Negative, the more aggressive of two types of non-Hodgkin’s lymphoma, in which the typical prognosis for this complex form of cancer offered a life expectancy of little more than ten years following successful observation and established treatment.

Unfortunately due to the protracted period between diagnoses, the appellant had missed any opportunity to undergo preliminary and less invasive therapies, while the infection had since spread across his chest, resulting in increased pain and suffering and an inability to continue working or have any reasonable quality of daily life without a constant fear of death.

When seeking remedy for the negligent breach of his original doctor, the appellant argued that while his initial chances of a relapse-free ten years were estimated as resting between forty-two to forty-five percent, the abject failure to properly diagnose or even refer the appellant for examination had reduced that figure to around twenty-five percent, along with the increased levels of pain and discomfort suffered during the time between healthcare professionals.

Relying upon the maxim ‘damages are the gist of negligence’ the appellant adopted an unorthodox approach to damages based upon his loss of chance of recovery, as opposed to a straightforward claim for full damages in direct relation to the injurious nature of the tumour growth and accompanying pain, while arguing that had the disease been correctly identified it might not perhaps have occurred.

Using expert testimony and statistical data to contest the degree to which the appellant was entitled to damages, the first court held that there was inconclusive evidence to suggest that a delay in diagnosis would have made any lasting impact upon the progression of the cancer, and so no greater an outcome could be found to exist besides than the one faced by the appellant during trial.

Upon challenge the Court of Appeal upheld the previous judgment, and so it was presented to the House of Lords, who examined the facts surrounding Hotson v East Berkshire Area Health Authority, wherein the House had been able to distinguish the nature of this particular medical error, and thereby evaluate the argument that the grievousness of miscalculation around terminal illness ought not to rely upon the balance of probabilities, but should instead rest upon any dramatic reduction in life expectancy when such an oversight was avoidable through proper conduct and the rigorous application of research. 

By close scrutiny of the statistical data the House further noted that despite the forecasted levels of survival, the patient had since confounded the figures through his continued lifespan in the aftermath of intense chemotherapy, which by extension defeated his theory that had the treatment been undertaken earlier he would have been alive longer than expected, and so dismissed the appeal while explaining that:

“Doctors do not cause the presenting disease. If they negligently fail to diagnose and treat it, it is not enough to show that a claimant’s disease has got worse during the period of delay. It has to be shown that treating it earlier would have prevented that happening, at least for the time being.”