Gregg v Scott [2005] 2 WLR 268       House of Lords

The claimant found a lump under his arm. He Consulted his doctor who negligently diagnosed it as innocuous when in fact it was cancerous. This lead to a nine month delay in the claimant receiving treatment. During this period the claimant's condition deteriorated and the cancer spread. This reduced his prospect of disease free survival from 42% to 25%. The delay also caused the claimant to undergo immediate high dose chemotherapy. The claimant brought an action based on his loss of a chance of a disease free survival.

Held 3:2

Loss of a chance is not a recoverable head of damage in medical negligence claims. Hotson v East Berkshire affirmed.

Lord Nicholls gave a powerful dissent:

"This is the type of case under consideration. A patient is suffering from cancer. His prospects are uncertain. He has a 45% chance of recovery. Unfortunately his doctor negligently misdiagnoses his condition as benign. So the necessary treatment is delayed for months. As a result the patient's prospects of recovery become nil or almost nil. Has the patient a claim for damages against the doctor? No, the House was told. The patient could recover damages if his initial prospects of recovery had been more than 50%. But because they were less than 50% he can recover nothing.

This surely cannot be the state of the law today. It would be irrational and indefensible. The loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of a 55% prospect of recovery. In both cases the doctor was in breach of his duty to his patient. In both cases the patient was worse off. He lost something of importance and value. But, it is said, in one case the patient has a remedy, in the other he does not.

This would make no sort of sense. It would mean that in the 45% case the doctor's duty would be hollow. The duty would be empty of content. For the reasons which follow I reject this suggested distinction. The common law does not compel courts to proceed in such an unreal fashion. I would hold that a patient has a right to a remedy as much where his prospects of recovery were less than 50-50 as where they exceeded 50-50."

  

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