Introduction
This essay examines the legal issues surrounding causation in fact and the concept of ‘loss of chance’ in a medical negligence claim, focusing on the case of Mrs Rita. In 2019, Mrs Rita was diagnosed by Dr Farid with a hormonal imbalance as the cause of her heavy menstrual bleeding, treated with hormone pills. However, in 2021, a second specialist diagnosed her with advanced cervical cancer, which had spread to other organs, significantly reducing her recovery chances from 75% to 35%. Mrs Rita seeks to bring an action against Dr Farid for failing to diagnose her condition in 2019, potentially delaying life-saving treatment. This essay will explore the principles of causation in medical negligence, particularly the challenges of proving factual causation and the applicability of the ‘loss of chance’ doctrine, to advise Mrs Rita on the viability of her claim under English law.
Causation in Fact: Establishing the ‘But For’ Test
In medical negligence claims, causation in fact is a fundamental requirement to establish liability. The claimant must demonstrate, on the balance of probabilities, that the defendant’s breach of duty caused the harm suffered. The primary test applied is the ‘but for’ test, which asks whether the harm would have occurred but for the defendant’s negligence (Barnett v Chelsea & Kensington Hospital Management Committee, 1969). In Mrs Rita’s case, she must prove that, had Dr Farid conducted appropriate tests in 2019, the cervical cancer would have been diagnosed and treated, likely preventing or mitigating its progression to an advanced stage.
However, applying the ‘but for’ test in medical contexts can be complex due to uncertainties in disease progression and treatment outcomes. Mrs Rita’s cancer had a 75% chance of recovery with early intervention, suggesting a reasonable likelihood of a better outcome. Yet, the defendant might argue that, even with early diagnosis, the cancer could have progressed regardless of treatment. Thus, establishing factual causation requires expert medical evidence to confirm that timely diagnosis and intervention would, more likely than not, have altered the outcome (Bolam v Friern Hospital Management Committee, 1957). Without such evidence, Mrs Rita’s claim risks failing at this initial hurdle.
Loss of Chance: Legal Recognition and Limitations
The ‘loss of chance’ doctrine offers an alternative framework when factual causation is uncertain. This principle allows claimants to seek damages for the lost opportunity of a better medical outcome due to negligence, rather than proving outright causation of harm. The seminal case of Hotson v East Berkshire Area Health Authority (1987) initially limited the application of loss of chance in medical negligence, ruling that if the chance of recovery is below 50% at the time of negligence, no compensation is awarded. However, the subsequent case of Gregg v Scott (2005) further clarified that loss of chance is generally not compensable in personal injury claims unless the chance constitutes a quantifiable harm in itself.
For Mrs Rita, the reduction in her recovery chance from 75% to 35% appears significant. Nevertheless, under current English law, courts are reluctant to award damages solely for a lost chance of recovery, as it does not equate to a tangible injury. The House of Lords in Gregg v Scott (2005) rejected a claim for a reduced survival chance from 42% to 25%, emphasising that policy reasons—such as avoiding speculative claims—outweigh compensating probabilistic losses. Therefore, while Mrs Rita’s diminished prospects are tragic, her claim may struggle to succeed on loss of chance grounds unless she can reframe the harm as a distinct, compensable injury.
Challenges and Practical Considerations
Beyond legal principles, practical challenges arise in proving both causation and loss of chance. Mrs Rita must secure robust medical expert testimony to substantiate that early diagnosis in 2019 would likely have led to successful treatment. Furthermore, she must demonstrate that Dr Farid’s failure to investigate beyond hormonal imbalance fell below the standard of care expected of a reasonably competent gynaecologist (Bolam v Friern Hospital Management Committee, 1957). Even if breach of duty is established, the inherent uncertainties of cancer progression may weaken her causation argument. Additionally, quantifying damages for a lost chance, if recognised, remains contentious, often leading to reduced awards or outright dismissal.
Conclusion
In advising Mrs Rita, it is evident that her medical negligence claim against Dr Farid faces significant hurdles in establishing causation in fact and applying the loss of chance doctrine. Under the ‘but for’ test, she must prove that early diagnosis would likely have prevented the cancer’s progression, a task requiring compelling medical evidence. Meanwhile, the loss of chance principle, though conceptually relevant given her reduced recovery prospects from 75% to 35%, is unlikely to succeed under current English law, as demonstrated in Gregg v Scott (2005). Therefore, while Mrs Rita’s situation is deeply unfortunate, her legal prospects appear limited unless stronger evidence can bridge the causal gap. This case underscores the broader tension in medical negligence law between compensating harmed patients and avoiding speculative litigation, highlighting the need for precise evidence and realistic expectations.
References
- Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428.
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
- Gregg v Scott [2005] UKHL 2.
- Hotson v East Berkshire Area Health Authority [1987] AC 750.
- Jones, M.A. (2017) Medical Negligence. 5th edn. London: Sweet & Maxwell.
