Thursday, 21 June 2012

Life Expectancy after Delay in Diagnosing Cancer - Part One

Negligent delay in diagnosing cancer may well cause injury by way of prolonged or more painful symptoms, the need for more intensive or invasive treatment or psychiatric consequences. However, whether or not these other injuries result from the delay, a primary concern for the patient/claimant will be the impact on their life expectancy.

When addressing prognosis, oncologists tend to refer to the percentage chances of survival over a certain number of years. They might advise that, say, 70% of women with breast cancer of a particular stage will survive for at least 5 years. This information is of little use to litigators. We need to know how long a person is likely to live and/or how long they would have been likely to live but for the negligent delay. With that information we can draft schedules and assess damages.

The perils of relying on the oncologists' approach to prognosis were illustrated in the well known House of Lords decision in Gregg-v-Scott. The claimant had a non-Hodgkin's lymphoma wrongly thought to be a harmless lump by his GP some nine months before the proper diagnosis was made. The evidence on which the courts had to give judgment was that his chances of ten year disease free survival had fallen from 42% to 25% as a result of the delay. The HL held that a reduction in the chance of survival did not entitle the claimant to damages.

Gregg-v-Scott is not authority for the proposition that a reduction in life expectancy cannot sound in damages. Nor does it follow that to recover damages the chances of survival for a certain number of years must fall from above 50% to below 50% because of the negligent delay. If that were the requirement then the statistics could be manipulated to produce that result: for example suppose Mr Gregg's chances of five year survival were 60% without delay and 40% with the delay. Would it follow that he should have recovered damages? And if so, what level of damages?

The difficulty for Mr Gregg was that at an earlier stage in the litigation the evidence seemed to establish that without the delay he would probably have survived ten years ("a cure" to the oncologists). It was pleaded on his behalf that he would have been cured but for the delay. However by the time their Lordships considered the case the evidence had changed such that Mr Gregg would probably not have survived ten years even without the delay in diagnosis. He therefore resorted to arguing that he had a reduced chance of a cure. That was the claim that failed.

It would have been possible to put a claim for damages for the effect of the negligent delay on his prognosis in a wholly different way:
Baroness Hale held:
"There is also the distinct possibility that the delay reduced his life expectancy in the following sense. It is possible that had he been treated when he should have been treated, his median life expectancy then would have been x years, whereas given the delay in treatment his median life expectancy from then is x minus y. This argument requires that the assessment of loss of life expectancy be based on median survival rates: ie those to be expected of half the relevant population at the particular time. If half the men with Mr Gregg's condition would have survived for x years or over with prompt treatment, and half would have survived for less than x years, then x is the median life expectancy of the group. If the same calculation of life expectancy from when he should have been treated is done in the light of the delay in treatment, the median life expectancy may have fallen. There might therefore be a modest claim in respect of the 'lost years'. "

Thus the House of Lords pointed the way forward in these difficult cases. I shall address the use of Median Life Expectancy in claims for delay in diagnosing cancer in Part Two (to follow).

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