Introduction
This essay examines whether Mary can recover damages in tort following Dr. Banda’s failure to diagnose her early-stage cancer due to a mix-up of medical records. At the time of the error, Mary had a 40% chance of recovery with prompt treatment, but a year later, when the cancer was finally detected, it had become incurable. The analysis will focus on the principles of the tort of negligence under English law, exploring the key elements of duty of care, breach, causation, and damage. The essay will assess whether Dr. Banda’s actions meet the criteria for negligence, particularly focusing on the challenges posed by the loss of chance doctrine in medical negligence cases. By drawing on established case law and academic commentary, this piece aims to provide a reasoned evaluation of Mary’s potential claim for damages and highlight the broader implications of such errors in medical practice.
Duty of Care: Does Dr. Banda Owe Mary a Legal Duty?
The first step in establishing negligence is to determine whether Dr. Banda owed Mary a duty of care. In English law, the relationship between a doctor and patient is a well-recognised context in which a duty of care arises. As established in the landmark case of Donoghue v Stevenson (1932), a duty of care exists where one party can reasonably foresee harm to another due to their actions or omissions (Atkin, 1932). In the medical context, this principle is reinforced by cases such as Bolam v Friern Hospital Management Committee (1957), which confirms that doctors owe a duty to act with reasonable care and skill towards their patients (McNair, 1957). Given that Dr. Banda was responsible for Mary’s diagnosis and treatment, it is clear that a duty of care existed. There is no indication in the scenario that this fundamental relationship is disputed, and thus, this element of negligence appears to be satisfied.
Breach of Duty: Did Dr. Banda Fall Below the Required Standard of Care?
Having established a duty of care, the next question is whether Dr. Banda breached that duty by mixing up Mary’s medical records. The standard of care expected of a medical professional is that of a reasonably competent practitioner in the same field, as articulated in the Bolam test (McNair, 1957). This standard is not one of perfection but of reasonable competence. Mixing up medical records, however, arguably constitutes a clear deviation from accepted practice. Proper record management is a fundamental aspect of medical care, as errors in this area can lead to misdiagnosis or delayed treatment, as occurred in Mary’s case. Courts have historically viewed administrative errors in healthcare settings as breaches of duty, as seen in cases like Whitehouse v Jordan (1981), where failures in procedural care were deemed actionable (House of Lords, 1981). Therefore, it is likely that Dr. Banda’s error would be considered a breach of the standard of care expected of a reasonably competent doctor.
Causation: Did the Breach Cause Mary’s Harm?
Establishing causation is often the most contentious element in medical negligence claims. Mary must demonstrate, on the balance of probabilities, that Dr. Banda’s breach caused her harm—that is, the progression of her cancer to an incurable stage. The ‘but for’ test, originating from Barnett v Chelsea & Kensington Hospital Management Committee (1969), requires showing that, but for the defendant’s negligence, the harm would not have occurred (Nield-Moir, 1969). At the time of the mix-up, Mary had a 40% chance of recovery with prompt treatment. One year later, her condition became incurable. The key issue here is whether the delay in diagnosis directly caused the loss of her chance of recovery.
In cases involving delayed diagnosis, courts often grapple with the concept of ‘loss of chance.’ The House of Lords in Hotson v East Berkshire Area Health Authority (1987) rejected a claim for loss of chance where a delayed diagnosis reduced the claimant’s probability of recovery from 25% to nil, ruling that causation could not be established unless the claimant proved, on the balance of probabilities, that the outcome would have been different (House of Lords, 1987). Similarly, in Gregg v Scott (2005), the claimant failed to recover damages for a reduced chance of survival (from 42% to 25%) due to delayed diagnosis, as the court held that loss of chance below 50% did not satisfy the causation threshold (House of Lords, 2005). Applying this precedent to Mary’s case, her initial 40% chance of recovery falls below the 50% threshold, suggesting that she may struggle to establish causation under current English law. This strict approach has been criticised for denying justice to claimants who suffer tangible harm from medical errors (Peel and Goudkamp, 2014), but it remains the binding authority.
Damage: Can Mary Claim for Her Loss?
Even if causation were established, Mary must demonstrate that she suffered actionable damage. In negligence, damage refers to harm that is legally recognised, such as physical injury or financial loss. The progression of Mary’s cancer to an incurable stage clearly constitutes physical harm, and the associated emotional distress and potential loss of earnings could further support her claim. However, as discussed above, the primary barrier lies in linking this harm to Dr. Banda’s breach under the loss of chance doctrine. If the court follows Gregg v Scott (2005), Mary’s claim for damages may fail, despite the undeniable impact of the delay on her health. Additionally, if any contributory negligence on Mary’s part (such as failing to seek a second opinion) were identified—though not evident in the scenario—this could reduce her damages under the Law Reform (Contributory Negligence) Act 1945.
Broader Implications and Policy Considerations
Mary’s case highlights broader issues in medical negligence law, particularly the rigidity of the causation rules surrounding loss of chance. Critics argue that the current approach, as seen in Gregg v Scott (2005), fails to adequately compensate patients who suffer harm due to medical errors, especially in cases where recovery chances are below 50% (Peel and Goudkamp, 2014). Furthermore, it raises questions about accountability for systemic errors in healthcare settings, such as record mismanagement. While individual clinicians like Dr. Banda may bear legal responsibility, such errors often point to wider institutional failings. Policy reforms, such as adopting a more flexible approach to loss of chance or imposing stricter protocols for medical record handling, could help prevent similar cases in future. Indeed, ensuring patient safety must remain a priority, regardless of the legal outcome of individual claims.
Conclusion
In conclusion, while Dr. Banda owed Mary a duty of care and likely breached that duty by mixing up her medical records, Mary faces significant challenges in recovering damages under the tort of negligence. The primary obstacle lies in establishing causation, given that her 40% chance of recovery falls below the threshold recognised by courts in cases like Hotson (1987) and Gregg v Scott (2005). Unless she can present evidence to tip the balance of probabilities in her favour—a difficult task under current law—her claim is unlikely to succeed. This outcome, though legally sound, underscores the limitations of the loss of chance doctrine in addressing the real harm suffered by patients like Mary. The case also serves as a reminder of the need for robust systems in healthcare to prevent avoidable errors, as well as a potential call for legal reform to better protect patients’ rights. Ultimately, while Mary’s situation is deeply regrettable, the strictures of English tort law may prevent her from obtaining the compensation she seeks.
References
- Atkin, L. (1932) Donoghue v Stevenson. All England Law Reports, House of Lords.
- House of Lords (1981) Whitehouse v Jordan. All England Law Reports.
- House of Lords (1987) Hotson v East Berkshire Area Health Authority. All England Law Reports.
- House of Lords (2005) Gregg v Scott. All England Law Reports.
- McNair, J. (1957) Bolam v Friern Hospital Management Committee. All England Law Reports.
- Nield-Moir, J. (1969) Barnett v Chelsea & Kensington Hospital Management Committee. All England Law Reports.
- Peel, E. and Goudkamp, J. (2014) Winfield & Jolowicz on Tort. 19th edn. London: Sweet & Maxwell.
