11-05-10
No chance for ‘loss of chance’ in medical negligence litigation
Tabet v. Gett High Court of Australia 12 (21 April 2010)[1]
The long-awaited decision of Tabet v. Gett[2] has now been delivered and it would seem that the High Court has ended the flirtation with of loss of chance of a better outcome being a recognised head of damage in negligence cases[3]. In the face of various examples of international support of the concept[4], and an affirmation by the New South Wales Court of Appeal in Rufo v. Hoskings[5], the Court has rejected the notion where the chance represents a mere possibility.
The Issue
In the context of medical negligence litigation, loss of chance is based on an attempt by a plaintiff to receive damages where a health professional’s breach of duty of care has caused the plaintiff to lose the chance of a more favourable outcome. The doctrine of ‘loss of chance’ argues that an opportunity of a better result, perhaps a small possibility in some cases, has been lost due to the defendant’s negligence. The plaintiff will never have the opportunity of discovering whether their chance would have eventuated. Various means of calculation of damages have been put forward, but, on one view, damages should be awarded calculated on the amount of damages for loss of outcome, reduced by the percentage that the chance (for example, recovery, reduced side effects, etc) would not have materialised.
The central legal issue for consideration by the High Court in Tabet is as set out by Santow JA in the Court of Appeal decision of Rufo v. Hoskings:
“should medical negligence cases allow a remedy to the plaintiff whose injury, more likely than not, would have occurred without any negligence on the part of the doctor, but where that negligence nonetheless denied the plaintiff a material chance of a better outcome?”.[6]
In Rufo v Hosking, the Court of Appeal answered the above question in the affirmative.
Loss of chance has typically been pleaded in cases where the plaintiff, facing a dire medical prognosis, has not been able to prove to the requisite degree that he or she would have recovered but for the negligence. Typically the lost chance is one with less than a fifty per cent chance of realisation[7]. In Tabet v. Gett the High Court was asked to put a value on the slim hope of a better outcome that was allegedly lost (or diminished) by the negligent omission. The Court ultimately found that the well established principles of causation were too significant a stumbling block for loss of chance to succeed as a legal principle.
The facts:
The plaintiff in the original case was six years old at the time of the injury.
She had been admitted to hospital on 11 January 1991 after having contracted chickenpox. On presentation she was suffering from headaches, nausea and vomiting.
The defendant doctor’s provisional diagnosis was that the child was suffering from chickenpox, meningitis or encephalitis. The plaintiff subsequently suffered a seizure and a CT scan and EEG were performed later that day. This led to the diagnosis of a brain tumour. The evidence was that the tumour had been developing for approximately two years. The plaintiff ultimately sustained irreversible brain damage.
The plaintiff’s case
The case for the plaintiff was that the child had lost the chance of a better outcome by the delay in the performance of the CT scan. A CT scan. It was said, would have shown the presence of tumour. Steroids could have been used to reduce the intracranial pressure. The necessary surgery would have been done earlier.
The original trial judge accepted this argument and found that the delay in performing the CT scan had caused the plaintiff to lose a chance of a better medical outcome. The Judge was not persuaded that the earlier treatment would have avoided the seizure and subsequent deterioration on the balance of probabilities.
This finding was subsequently quashed on appeal to the NSW Court of Appeal. It was by this route that the High Court had the opportunity to consider loss of chance. In order to succeed, the High Court needed to find that the causal effects of the negligence should not be confined to a consideration of what was a probable outcome.
The High Court decision
The judges were unanimous in their decision to dismiss the appeal. Each had different points of emphasis.
Gummow ACJ gave considerable weight to the evidence of the neurosurgeon. He agreed that the claim that earlier use of steroids would have led to a different outcome was “entirely speculative.” He was not prepared to sanction a weakening of the causation requirement nor was he interested in drawing analogies with the law of contract (which has sanctioned loss of chance).
Hayne and Bell JJ, agreeing with Kiefel J that the appellant was unable to prove the respondent’s negligence was a cause of damage, emphasised that a defendant should not be required to pay damages for the loss of a chance that represented a mere possibility, rather than a probability, of a better medical outcome. Damage, for the purposes of causation, should represent a detrimental difference to a plaintiff as a result of a defendant’s negligent act or omission.
Heydon J hinted that the facts of the case were not conducive to arguing loss of chance, and mused on the value of the decision itself in resolving the issue[8].
Crennan J, concurring also with the reasoning of Kiefel J, emphasised that the original plaintiff was asking the court to make a radical, not incremental, development in the common law. Such a profound alteration to the causation element should only be the “business of Parliament”[9] Her Honour said.
Kiefel J also preferred the general standard of proof (the balance of probabilities) with respect to causation arguments. Mere possibility of a better outcome is insufficient.
Comment:
One might ask whether the decision is making the statement that people who face dire medical prospects may lawfully receive a lower standard of care than patients who face reasonable prospects[10]. Rather than being seen as a gate to excessive compensation for remote possibilities, application of loss of chance to medical negligence matters could be seen as an economically effective mechanism for making damages awards that reflect the realities of the chances faced by a plaintiff – truth in damages. Gummow ACJ notes that the action was brought in negligence alone, and not in contract. Perhaps this is a flag that such cases may more comfortably be accommodated by contract actions.
The way forward in negligence...
Undoubtedly lawyers will consider other ways to obtain pro rata damages in negligence cases and some prospective options have already been identified.
One Sydney barrister who practises extensively in medical negligence litigation has put forward the concept of divisibility as follows.
“...One can see that the question of divisibility depends on whether each exposure to a particular factor materially increased the risk of subsequently developing the alleged condition or whether each exposure has an actual effect and materially contributes to the severity of the condition that ultimately develops. The outcome depends on whether a cumulative risk hypothesis or a cumulative effect hypothesis is accepted by a court in terms of causation of the condition.”[11] [Emphasis added]
A divisible condition is one that is the result of a progressive accumulation of events. Where ultimate harm has been occasioned by multiple causes, including an underlying condition as well as the negligent act or omission, a plaintiff should be awarded damages on a pro rata basis for the defendant’s proportional contribution to the totality of the harm. This differs from the ‘all or nothing’ approach to damages. Although one may consider that this is simply inviting in loss of chance by way of another door, it is noted that the argument cuts both ways, and may be employed by defendants in an effort to reduce the degree of liability.
Even if the High Court has cast aside loss of chance as an affront to the doctrine of causation, plaintiffs may still have redress for negligence that, combined with other events, has arguably contributed to a significantly compromised state of health.
Footnotes
[1] The case was decided on pre-Civil Liability Act 2002 (NSW) common law principles.
[2] HCA 12 (21 April 2010)
[3] Australian courts are clear that damages can sound for a breach of contract that results in a lost chance of an opportunity or benefit , albeit that this comes into play with respect to calculation of damages. Similarly, the concept can be accommodated in actions under s.52 of the Trade Practices Act 1974 (Cth).
[4] M A Meldrum, “Loss of Chance in Medical Malpractice Litigation: Expanding Liability of Health Professionals Versus Providing Justice to Those Who Have Lost” (Nov 2001) 9(2) JLM 133 at 213. The United Kingdom does not recognise loss of chance as a head of damage in medical negligence cases.
[5] [2004] NSWCA 391
[6] Ibid at [17]
[7] Arguments have been made that the issue should be whether the chance exists on the balance of probabilities.
[8] Ibid at [97]
[9] Ibid at [102]
[10] See Luntz, “Loss of Chance” in Causation in Law and Medicine, edited by I Freckelton and D Mendelson (1992) at 183, quoted by Santow JA in Rufo v. Hoskings op cit, at [25]
[11] Ibid at p.8
Julie Hughes
Solicitor
Catherine Henry Partners
Health & Relationship Law
T 02 4929 3995
E julieh@chpartners.com.au W www.chpartners.com.au
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