Gregg v Scott (2005)

English Medical Law

The Doctor by Sir Luke Fildes
‘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.”

British Chiropractic Association v Singh (2011)

English Tort Law

Chiropractic Association v Singh
‘Leaning Right’ by Steve Mills

Damages for libel and the freedom of expression, rely upon distinct terms of meaning for their preservation or application. And so on this occasion, the subjective opinion of an industry insider becomes the target of a writ that while not uncommon, does little to protect the reputation of those evaluated.

Whilst writing a tabloid article, the appellant doctor wrote of the respondents:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence.”

In retaliation, the respondents issued a writ for defamation on grounds that when publishing the article, the appellant had implied on the basis of fact, that the respondents lacked any credible evidence with which to support its claims. During the trial, the judge elected to apply a ‘fact’ based test, as opposed to one of subjective opinion, whereupon the jury found against the appellant and damages were set, along with injunctive remedy.

During the appeal, the Court reexamined the actions of the judge when choosing to adopt a factual premise upon which to rest the defence, while exploring the meaning of art.10 of the European Convention on Human Rights (Freedom of expression), with particular reference to De Haes and Gijsels v Belgium, in which the Court found that a journalist accused of libellous commentary was ultimately found to have merely expressed a ‘value judgment’ based upon collective facts relating to the field under discussion.

Here, the appellant had recently co-authored a book with an established authority on the history of chiropractic medicine, who had found through direct application of the methods common to chiropractic, that despite seventy experimental trials, there was no evidence to support the claims forwarded by the respondents, hence the commentary made within the article.

With these ‘facts’ in hand, the Court held that while honest in his intentions, the trial judge had erred in treating subjective opinion and reasoned commentary as statements of fact, and that by doing so had in essence contravened the rights contained under art.10, and reinforced the notion that challenges of those in authority were subject to punishment or forfeiture.

It was for this reason that the Court reversed the previous decision, while citing the words of Judge Easterbrook in Underwager v Salter, who had clarified how:

“[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation . . . more papers, more discussion, better data, and more satisfactory models – not larger awards of images – mark the path towards superior understanding of the world around us.”

While reminding the Court that language should not be used to distort, dilute or obscure the purpose of clarity when establishing liability for defamation or libel.

Sharp v Adam (2006)

English Succession Law

Sharp v Adam
‘Unsaddling’ by David Mouse Cooper

Testamentary capacity and the long-term effects of a debilitating terminal illness, are central to a case where despite numerous witness accounts and medico-legal opinion, the power to reach an exacting judgment remained elusive to the end.

Having been diagnosed with multiple sclerosis in 1980, an equine stud owner and racehorse trainer was left with virtually no direct means of communication at the time his revised will underwent drafting and execution. This change in disposition was such that precluded his two daughters from inheritance, and which led to costly litigation in contention of a perceived rejection.

During the twenty-so years of his decline, the testator had been supported by a number of close friends and acquaintances through employment, legal services, medical assistance, 24-hr care and lifelong companionship. At the outset of his condition, the testator was able to communicate without detriment, yet as the years passed, his only means of dialogue was through mechanical devices, gestures and blinking.

This resulted by extension of the crippling effects of the disease, which according to medical data, was accompanied by progressive weakening of the cognitive faculties, as often found in cases similar to this. While the original will dated February 1997 made arrangements for his two daughters to benefit from his £1m estate, he decided in 2001, to revise the will in favour of his two primary employees, who had both remained loyal to him for a period of over twenty-five years.

This came at a time when those closest had begun to voice concerns as to his mental state, along with his long-standing reliance upon medication to accommodate the increasingly painful symptoms. After a number of consultations with his trusted solicitor, doctor and friends, the revised will was drafted and executed in full accordance with legal procedures, and on the understanding that while the removal of his daughters from the will was prima facie absolute and seemingly out of character, there was simply no evidence to suggest the testator was anything less than lucid and of sound mind.

Upon his death, the matter was brought before the court, whereupon the daughters claimed their father lacked testamentary capacity at the time the new will was drafted, and that under the principles used in the Banks v Goodfellow test which reads:

“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the Act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

The will was void, therefore the 1997 will must stand. Having presented the evidence to a discerning jury, the case was made using expert testimony from both a Professor of Neuropsychiatry and a highly qualified Neurologist, who between them argued both for and against the testator’s capacity to instruct and bequeath his estate. Despite the compulsion of the two professional reports, neither party had met the deceased, nor been present when the revised will was prepared. This mitigating element was contributive to the granting of an appeal after the jury decided against the 2001 will, whereupon it was presented again to the Supreme Court.

While the previous judge had found himself contradicting the viewpoint of the Professor on a number of points, the Court chose to rely upon the argument that in keeping with medical expectations, the deterioration of brain function within multiple sclerosis cases would be representative of a man unable to hold himself fully accountable when preparing a will at the stage the testator had reached when doing the same; while emphasis was also placed upon the long-term drug usage of the deceased, which had incidentally ceased sometime before the revision occurred.

It was this, along with the sudden reversal of fortune for the testator’s employees, that solidified the verdict to dismiss the appeal before noting that while subjective opinion of those witness to testator requests frequently conflict with that of medical data, the words of Lord Cranworth in Boyse v Rossborough remind us all that:

“There is no possibility of mistaking midnight from noon, but at what precise moment twilight becomes darkness is hard to determine.”