Man whose tumour went untreated loses negligence battle
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《英国医生杂志》
A man with non-Hodgkin抯 lymphoma whose tumour spread and went untreated for nine months—after a GP had negligently diagnosed a lipoma and failed to refer him to hospital—lost a long legal battle in the House of Lords last week.
The Medical Defence Union, which fought the case on behalf of the doctor, hailed the result as a "landmark victory." Had it not won, the union said, "the case would have seen the erosion of a fundamental principle in clinical negligence law, with serious implications for UK clinicians." It might have led to a massive increase in compensation claims, they warned.
In November 1994 the patient, Malcolm Gregg, consulted his GP, James Andrew Scott, with a lump under his arm. Dr Scott diagnosed it as a lipoma.
Mr Gregg moved house and in August 1995 saw a new GP, who referred him to hospital. At his hospital appointment in November 1995 he was sent for an urgent biopsy, and non-Hodgkin抯 lymphoma was diagnosed.
He was still awaiting treatment when he was admitted to hospital as an emergency case in January 1996 with acute chest pains, and it was discovered that the tumour had spread to his left pectoral region.
To succeed in a claim of clinical negligence the claimant has to prove that the doctor抯 breach of duty caused the harm suffered.
Expert statistical evidence indicated that Mr Gregg, who had the ALK negative type of non-Hodgkin抯 lymphoma, probably had a less than 50% chance of 10 year survival when he saw Dr Scott. So, although the negligence may have made his long term survival less likely, it had not caused the harm he suffered.
Mr Gregg抯 lawyers argued that he was entitled to compensation because he had suffered the "loss of a chance of recovery" as a result of the delay.
But the law lords ruled by a majority of three to two that the ordinary principle of causation should apply and rejected the claim. The five judges took an unusually long time, eight months, to deliver their judgment in this particularly difficult case.
Lord Nicholls, who with Lord Hope would have allowed Mr Gregg抯 claim to succeed, said it would be "irrational and indefensible" to hold that a patient who lost a 55% prospect of recovery could recover damages while one who lost a 45% prospect was entitled to nothing.
But Lord Hoffmann said "a wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act." He added: "It would have enormous consequences for insurance companies and the National Health Service." He agreed with Lord Phillips and Baroness Hale that "any such change should be left to parliament."
Lord Phillips pointed out that Mr Gregg was still alive nine years after the tumour was found to have spread.
Dr Christine Tomkins, head of professional services at the Medical Defence Union, said: "If we had lost the case, it could have led to the number of compensation claims increasing dramatically, which would have had serious implications for our members and the NHS. This judgment has upheld the status quo, and that is positive news for all UK doctors."(BMJ Clare Dyer legal correspondent)
The Medical Defence Union, which fought the case on behalf of the doctor, hailed the result as a "landmark victory." Had it not won, the union said, "the case would have seen the erosion of a fundamental principle in clinical negligence law, with serious implications for UK clinicians." It might have led to a massive increase in compensation claims, they warned.
In November 1994 the patient, Malcolm Gregg, consulted his GP, James Andrew Scott, with a lump under his arm. Dr Scott diagnosed it as a lipoma.
Mr Gregg moved house and in August 1995 saw a new GP, who referred him to hospital. At his hospital appointment in November 1995 he was sent for an urgent biopsy, and non-Hodgkin抯 lymphoma was diagnosed.
He was still awaiting treatment when he was admitted to hospital as an emergency case in January 1996 with acute chest pains, and it was discovered that the tumour had spread to his left pectoral region.
To succeed in a claim of clinical negligence the claimant has to prove that the doctor抯 breach of duty caused the harm suffered.
Expert statistical evidence indicated that Mr Gregg, who had the ALK negative type of non-Hodgkin抯 lymphoma, probably had a less than 50% chance of 10 year survival when he saw Dr Scott. So, although the negligence may have made his long term survival less likely, it had not caused the harm he suffered.
Mr Gregg抯 lawyers argued that he was entitled to compensation because he had suffered the "loss of a chance of recovery" as a result of the delay.
But the law lords ruled by a majority of three to two that the ordinary principle of causation should apply and rejected the claim. The five judges took an unusually long time, eight months, to deliver their judgment in this particularly difficult case.
Lord Nicholls, who with Lord Hope would have allowed Mr Gregg抯 claim to succeed, said it would be "irrational and indefensible" to hold that a patient who lost a 55% prospect of recovery could recover damages while one who lost a 45% prospect was entitled to nothing.
But Lord Hoffmann said "a wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act." He added: "It would have enormous consequences for insurance companies and the National Health Service." He agreed with Lord Phillips and Baroness Hale that "any such change should be left to parliament."
Lord Phillips pointed out that Mr Gregg was still alive nine years after the tumour was found to have spread.
Dr Christine Tomkins, head of professional services at the Medical Defence Union, said: "If we had lost the case, it could have led to the number of compensation claims increasing dramatically, which would have had serious implications for our members and the NHS. This judgment has upheld the status quo, and that is positive news for all UK doctors."(BMJ Clare Dyer legal correspondent)