Monday, 17 June 2013

Delay in Diagnosing Cancer - Part 5 - Reduced Life Expectancy

For many claimants whose cancer was diagnosed later than it ought to have been, one of their primary concerns is the effect on their life expectancy. This is an issue which can cause considerable difficulties in litigation. It is important not to forget that there are other injuries which may be attributable to delay such as the need for more radical treatment or the psychological effects of the delay, but in this post I shall address the issue of proving reduced life expectancy.

There are a number of general difficulties which beset this issue:

-   When Oncologists talk about a cure for a patient's cancer, they talk in terms of the chances of 5 or 10 year survival. So a patient has a 95% chance of a cure from breast cancer if they have a 95% chance of surviving 10 years from diagnosis. Lawyers find it difficult to translate that information into a claim. If a claimant's chances of cure have reduced from 95% to 55% because of negligent delay, what have they lost and how do you quantify that loss, if any?

-   In establishing what life expectancy would have been but for the negligent delay, you are having to use the evidence of what has happened (given the delay) to prove what would have happened without the delay. You are using the present to predict the past! Is it legitimate to use evidence of how the claimant has responded to later treatment to "predict" how they would have responded to earlier treatment?

-   Statistics of how groups of patients have fared following diagnosis and treatment are obviously useful evidence to help establish life expectancy, but how meaningful are statistics to proving an individual case? Is the claimant typical for the group? What individual factors are relevant to prognosis and how many of them are reflected in the data?

It is perhaps easier to list all the difficulties of establishing a reduction in life expectancy than to give any solutions but there is one approach which will be helpful in many cases. In the well-known case of Gregg-v-Scott, many of the difficulties in proving reduced life expectancy came to the surface and were considered by the House of Lords. Mr Gregg originally claimed that on the balance of probabilities he would have been cured of his cancer but for his GP's negligence. By the time of actual diagnosis his prospects of being cured were below 50%. He had claimed that he had been deprived of a cure. Unfortunately for that claim, by the time the case was heard by their Lordships the evidence established that at the time when he ought to have been diagnosed Mr Gregg's chances of a cure were 42% (compared with 25% on actual diagnosis). Mr Gregg therefore changed his approach and claimed that he had suffered a reduced chance of a cure. The court found that there was no such claim recognised by English law.

Many have misinterpreted Gregg-v-Scott as meaning that a claimant whose chances of a cure would have been below 50% even without the negligent delay (or whose chances of a cure are above 50% even with the delay) cannot prove causation of reduced life expectancy.

In fact, the problem for Mr Gregg arose from the way in which he framed his claim. Baroness Hale highlighted that problem in her judgment and provided a solution. She said at [207] that the claim might have been put as a reduction in median life expectancy.

"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'."

Similarly, if the claim is under the Fatal Accidents Act, then a period of dependency can be calculated.

The beauty of using median life expectancy is that it can establish a reduction even if on the balance of probabilities the claimant would not have been "cured" without the delay (or still has >50% of cure even given the delay). It also allows for the calculation of loss based on definite periods of time/survival. 

This approach succeeded when a claim framed on the basis of reduced chances of cure would have failed, in the recent case of JD-v-Mather.

Space does not allow me to discuss the pros and cons of using median life expectancy further in this post. It is an issue which I have discussed at various seminars and will be talking about at the APIL clinical  negligence conference later this year (plug). Suffice to say that deploying median life expectancy is potentially a very useful approach to many but not all claims for delay in diagnosing cancer. The potential pitfalls of using statistics do not disappear: is there sufficiently robust data available? Is there data to show what median life expectancy is when the survival prospects are high? Are there reasons to suppose that use of the median is not appropriate for the particular claimant? Nevertheless, I believe, litigators should always consider using median life expectancy to prove reduced life expectancy - it will be an effective in many cases.

In the next and final post in this series I will look at how to quantify claims where there is reduced life expectancy and the decisions to be made when representing claimants who may die prematurely because of negligent delay in diagnosing their cancer. There are links to useful resources here.

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