Causation in Medico‐Legal Practice: A Doctor's Approach to the ‘Lost Opportunity’ Cases*
| Published date | 01 July 1992 |
| Author | Walter Scott |
| Date | 01 July 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00929.x |
Causation in Medico-Legal Practice: A Doctor’s
Approach to the ‘Lost Opportunity’ Cases*
Walter
Scott
*
*
Introduction
Advances
in
modern medicine increasingly provide patients
with
opportunities of
cure which would hitherto have been impossible. If a patient can show that the
doctor’s negligence caused him to lose that opportunity, the question arises of how
to quantify the damage in a way that is just for both parties. In this type of case,
it
is
in
the defendant’s interest to show that the damage was caused by the disease
process and was inevitable, regardless of the treatment; and
it
is
in
the plaintiffs
interest to show that
it
was caused by the doctor’s negligent failure to treat that
illness.
In
other words, the plaintiff will attempt to show that the doctor’s shortcoming
caused him to lose the opportunity of cure. This difficulty is peculiar to medical
negligence cases because, even with the best treatment available, some disease
processes may not have a successful outcome. This means that the best that any
plaintiff can achieve is to show that he lost the opportunity of being cured.
Historical Background
Earlier this century, the dilemma fell to be considered
in
the contract law case of
Chuplin
v
Hicks,’
in
which the plaintiff tried to show that she, as a model, had
lost the opportunity of winning a competition. The solution chosen at that stage
was to assess the
loss
of chance as a percentage and convert this into the damages
which should be awarded.
This question of the ‘lost chance’ arose much later in Scotland
in
the medical
negligence case of
Kenyon
v
Bell,2
where the father of a girl who suffered an eye
injury tried to show that his daughter, because of the doctor’s negligence, had lost
the chance of having her sight saved. The medical evidence showed that, even with
good treatment, the chances of the eye being saved were less than
50
per cent. The
judge decided against adopting the solution which had been used in
Chuplin
v
Hicks
and chose instead to adopt an ‘all or none’ approach. This meant that the plaintiff
would be awarded nothing unless she could show that she had a greater than
50
per
cent chance of cure with good treatment. Conversely, she would receive
full
damages
if
she could pass that
50
per cent figure. The girl therefore received nothing.
Some years later, medical negligence decisions drifted back to the old rule adopted
in
Chuplin
v
Hicks.
In
Clark
v
M~cLennun,~
a woman successfully sued her
*In a previous article
in
the Review
((
1991)
54
MLR
5
I
I),
Timothy Hill discussed
Hotson
v
East
Eerkshire
AHA
[
19871
2
All
ER
908
and argued against the use of statistical chances when assessing damages
in
‘lost opportunity’ cases. This article is a reply. The article stems from a larger project on causation
in
medico-legal practice carried out at the Polytechnic
of
West London.
**MBBS. MRCGP, DObstRCOG LL.B.
I
I
19911
2
KB 786.
2
I
19531
SC
125
(Outer House).
3
119831
I
All
ER
416.
52
1
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