Loss of Chance in Medical Negligence

Abstract

A medical practitioner negligently fails to diagnose, or to treat appropriately, a patient’s condition, such as cancer. If not for the doctor’s negligence, the patient would have had a chance of a more favourable outcome than the patient now has. Does the patient have the right to sue the doctor for diminution of that chance?

Courts in different common law jurisdictions have given different answers to this question. This paper reviews the decisions of courts in Canada, the UK, the US and, particularly, Australia. It distinguishes between cases where the patient’s chance of a more favourable outcome has been reduced, but the less favourable outcome has not yet occurred, and cases where the patient has actually experienced the less favourable outcome. It also considers whether there is a distinction between cases where the initial chance of a more favourable outcome was more than even (ie, more likely than not) and cases where the patient is unable to establish such likelihood. Another possible distinction is between cases where the chance is dependent on the patient’s own choices and where the chance is due to other factors.

The paper examines the arguments for and against according the patient the right to sue in these different circumstances. In the Australian context consideration is given to these arguments from the point of view of (a) statute, (b) case law, (c) principle, (d) analogy and (e) policy.

Keywords: common law, negligence

JEL Classification: K00, K13, K49