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In the 1992 case of Rogers v. Whitaker[1],
the High Court of Australia may not have rendered asunder the floodgates
which metaphorically hold back the tide of American-style malpractice litigation.
But though the sluice has not yet been fully breached, the flow of “blame
and claim” law-suits has increased from a steady trickle to a minor torrent.
Many of these are in the nature of “failure to warn” claims, encouraged
– if not inspired – by the decision in Rogers v. Whitaker.
It is common enough folklore that
malpractice litigation is out of control in the United States. What
is the hard evidence of this ? A report in the New England Journal
of Medicine[2] concludes that there is no statistical
correlation between the outcome of malpractice claims, and whether or not
the medical practitioner was actually negligent. From a sample of
51 malpractice claims, the authors sought to distinguish those involving
actual negligence by the treating physician, from those which involved
no actual negligence. They concluded that the average pay-out in
cases involving no actual negligence was 50% higher than the average settlement
in cases where the treating physician had actually been negligent ! This paper is concerned with one
specific area of medical malpractice litigation, namely the quantification
of damages in cases where a practitioner is found negligent for failing
to warn a patient of the risks inherent in a proposed course of treatment.
Whilst at first sight this may not seem to be an issue of Earth-shattering
significance, it is my contention that the principles developed by the
courts to deal with such issues will have a significant impact on the future
trend of medical malpractice litigation in this country. If the courts
adopt a conservative approach to the quantification of damages, that may
serve as a bulwark to sure up the fragile floodgates; an expansive approach
will surely see it swept away by the raging maelstrom. The opportunity for the High Court
to lay down guidance on this issue may arise if special leave is granted
for an appeal from the decision of the Queensland Court of Appeal[3].
That application is to be heard on the day preceding the conference at
which this paper is being delivered, so the result will not feature in
the printed version of this paper.
Failure to
Warn: The Basis of Liability
It is trite to say that, generally
speaking, medical practitioners are under a legal duty to warn patients
of a material risk inherent in a proposed treatment[4].
The test to be applied in determining whether a particular risk is or is
not “material” has been stated by a majority of five High Court Justices
in these terms[5]:
“… a risk is material if,
in the circumstances of the particular case, a reasonable person in the
patient’s position, if warned of the risk, would be likely to attach significance
to it or if the medical practitioner is or should reasonably be aware that
the particular patient, if warned of the risk, would be likely to attach
significance to it.”
As the High Court was at pains to
point out in the leading case of Rogers v. Whitaker, the determination
whether or not a risk is a “material one” – in the sense defined – does
not depend upon the application of medical standards or practices[6].
Accordingly, at an evidentiary level, this issue does not fall to be determined
on the basis of expert testimony as to whether a particular risk
is one of which a patient should or should not be warned, or expert evidence
as to ordinary medical practice in providing or refraining from providing
a warning in such cases. Expert testimony will, however, be relevant
in two ways. First, in order to determine whether a reasonable patient
would be likely to attach significance to a risk of a particular kind,
the court must be apprised of the degree of probability that a particular
risk will materialise and, if so, of the consequences for the patient in
that event. Secondly, expert testimony will be relevant in assessing
whether the case falls within the limited category of cases where the duty
to warn is overridden by therapeutic considerations, defined by the majority
in Rogers v. Whitaker as[7]:
“… those cases where there
is a particular danger that the provision of all relevant information will
harm an unusually nervous, disturbed or volatile patient … .”
Thus, except in what might be regarded
as “special cases” where the duty to warn is mitigated by therapeutic considerations
relevant to the particular patient, the question whether or not the duty
arises is a question for the tribunal of fact – that is to say, the jury
if there is one, or otherwise the trial judge – attaching as much or as
little weight to medical opinion as the tribunal of fact considers appropriate.
One consequence of this is to remove
from the hands of the medical profession the question of defining what
is proper or acceptable clinical practice: this is now to be defined
by the courts, including juries, comprising individuals whose involvement
with the medical profession is almost invariably in the role of consumers
rather than providers of medical services. Another consequence is
that, because the test of “materiality” depends upon issues of fact which
fall to be determined on a case-by-case basis, there can be no certainty
as to what is proper or acceptable clinical practice. In one case,
the trial judge or jury may consider that a risk was not a material one,
because the evidence shows that the degree of probability attaching to
the risk is very remote; but this will not prevent a different tribunal
of fact, comprising a different judge or different jurors, arriving at
a contrary conclusion in a subsequent case, even on the same evidence.
So, even without taking into account considerations peculiar to a specific
patient, one court may find that a risk of (say) one in ten-thousand is
such that the hypothetical reasonable person would be likely to attach
significance to it if a warning were given; in another case, involving
precisely the same risk with precisely the same percentage probability
of occurrence, the court may conclude that a hypothetical reasonable person
would not be likely to attach significance to the risk if warned of it. The most concerning feature of the
High Court’s decision in Rogers v. Whitaker is, however, the fact
that their Honours prescribed cumulative tests for determining the issue
of materiality, one test being objective, the other being subjective.
Even if a risk is not “material”, in the sense that a reasonable patient
would be unlikely to attach significance to it, a medical practitioner
may be held to be negligent in the circumstances of a particular case if
the tribunal of fact is satisfied that the medical practitioner was aware,
or ought to have been aware, that the particular patient would be likely
to have attached significance to the risk. It may be that their Honours
had in mind the types of cases which (I am sure) arise more frequently
in fiction than in daily clinical practice – where, for example, the patient
is a concert pianist, and would therefore attach more than usual significance
to the risk of losing some degree of manual dexterity; or where the patient
is a professional sportsman, and is therefore peculiarly sensitive to risks
which may affect his ability to continue playing a particular sport.
More often, however, this issue is going to arise where the patient claims
(after the event) to have had an idiosyncratic fear of sustaining a particular
disability, so that even if the doctor was not aware of this circumstance,
it may be open to contend that, by making prudent enquiries, the doctor
ought to have discovered it. What I have said to this point,
concerning the nature of a medical practitioner’s duty to warn, is largely
uncontroversial. It is, however, an important background to the subject
of present concern, which relates to the legal consequences where the duty
to warn is breached. The fact that a medical practitioner has failed
to give an appropriate warning in circumstances where the duty is held
to arise is not, in itself, a sufficient basis to hold the medical practitioner
liable in damages. Whilst the law characterises the failure to give
an appropriate warning in such circumstances as negligent, negligence alone
is not a basis for legal liability. For the plaintiff to succeed,
it must be proved that the failure to warn was productive of loss or damage.
And this is where the real problem lies. What does a plaintiff need
to prove, in order to establish that a medical practitioner’s negligent
failure to give an appropriate warning was productive of loss or damage
?
Proof of Loss
or Damage
Superficially, the answer to this
question is simple and obvious: for the patient to establish that
loss or damage was suffered as a result of the medical practitioner’s failure
to give an appropriate warning, two things must be shown. First,
it must be shown that the patient would have acted differently if an appropriate
warning had been given – for example, by declining to undergo the proposed
treatment. And secondly, it must be shown that the patient would
have been better off as a result of acting differently based on an appropriate
warning. Both of these questions are, obviously,
hypothetical ones: since the patient never received the warning,
it is not possible to say with any certainty what the patient would or
would not have done had the appropriate warning been given; nor is it possible
to say with any certainty how this patient’s present circumstances might
have differed if another course of action had been adopted. Our judicial
system is not unfamiliar with the need to answer hypothetical questions
of fact: in every personal injuries case, for instance, one of the
issues which needs to be considered in determining the quantum of the plaintiff’s
lost future earnings is the course which the plaintiff’s career is likely
to have taken if the plaintiff had not sustained the injuries which are
the subject of the plaintiff’s claim. But the nature of the hypothetical
questions which need to be resolved in order to determine liability in
“failure to warn” cases makes such cases especially problematic. In saying that these hypothetical
questions are “problematic”, I am not for the moment particularly concerned
with the practical and evidentiary problems, although these are significant.
In the first place, the court is called upon to consider what a particular
individual may have done on a specific past occasion, if that individual
had received an appropriate warning. The patient will doubtless assert
in evidence, with the benefit of hindsight and the potential of recovering
damages, that he or she would never have consented to the treatment if
an appropriate warning had been given. But courts should be, and
usually are, skeptical of such assertions. This leaves the court
in the difficult position of assessing, as an objective fact, a patient’s
subjective reaction in circumstances which never occurred. There
is a famous saying of Lord Justice Bowen that “the state of a man’s mind
is as much a fact as the state of his digestion”. But the issue which
the court has to grapple with is not the state of the patient’s mind, either
at trial, or at the time when the patient consented to the treatment in
question, but rather what the state of the patient’s mind would have been
in entirely hypothetical circumstances. Nor is it always a simple
case of determining, in retrospect, whether the patient might or
might not have consented to a particular form of treatment had the risks
been adequately explained. It may be, for example, that a number
of different forms of treatment were available to the patient, and the
court is called upon to decide which (if any) of these treatments the patient
would have consented to had there been adequate disclosure of the risks
associated with each of them. Nor do the hypothetical questions
end with a determination of what the patient might or might not have done
in light of an appropriate warning. The court must also determine,
generally on the basis of expert medical testimony, how much better or
worse off the patient might have been if the relevant treatment had not
been undertaken. Needless to say, and leaving aside instances of
cosmetic and other forms of elective surgery, people do not ordinarily
undergo medical treatment unless they are ill. So the court must
consider the prognosis of the patient’s then illness, and weigh that against
the consequences which have been manifested as a result of the treatment
which the patient actually received. If an alternative form of treatment
was available, not involving the same risks as the treatment which was
undertaken, it may be necessary to consider both the prospects of the alternative
treatment being successful, and also the prospects of the alternative treatment
producing other undesirable consequences. You might think that, except in
very rare cases, none of these hypothetical issues is likely to produce
a definite answer one way or the other. At best, a court may be able
to say that there is a greater or less than 50% probability that the patient
would have submitted to a particular form of treatment if warned of the
risks involved, and a greater or less than 50% probability that the patient’s
condition would be better if the proposed treatment had not been undertaken,
and either the patient’s condition had remained untreated, or some alternative
treatment had been undertaken.
Findings of
Fact Where the Issue is Hypothetical
One of the shibboleths of the legal
profession is the phrase “balance of probabilities”. This phrase
is used to distinguish the standard of proof in civil cases from that applying
in criminal cases, where guilt must be proved beyond reasonable doubt.
Where, in a civil case, the issue is one of historical enquiry – whether
or not a specific event occurred in the past – the tribunal of fact (judge
or jury) is required to decide whether it is more likely than not that
the event did occur. So in a “failure to warn” case, where there
is an issue whether or not a particular warning was in fact given, the
question for the court is whether the evidence that a warning was given
is more credible than the evidence that it was not; and even if the court
considers there is a 49% probability that an appropriate warning was given
to the patient, the 51% probability that the warning was not given is sufficient
to found a finding to that effect. The methodology of fact-finding
is different, however, where the factual issue to be determined does not
involve an historical enquiry. As the majority of the High Court
observed in the 1990 case of Malec v. J.C. Hutton Pty. Ltd.[8]:
“When liability has been
established and a common law court has to assess damages, its approach
to events that allegedly would have occurred, but cannot now occur, or
that allegedly might occur, is different from its approach to events which
allegedly have occurred. A common law court determines on the balance
of probabilities whether an event has occurred. If the probability
of the event having occurred is greater than it not having occurred, the
occurrence of the event is treated as certain; if the probability of it
having occurred is less than it not having occurred, it is treated as not
having occurred. Hence, in respect of events which have or have not
occurred, damages are assessed on an all or nothing approach. But in the
case of an event which it is alleged would or would not have occurred,
or might or might not yet occur, the approach of the court is different.
The future may be predicted and the hypothetical may be conjectured.
But questions as to the future or hypothetical effect of physical injury
or degeneration are not commonly susceptible of scientific demonstration
or proof. If the law is to take account of future or hypothetical
events in assessing damages, it can only do so in terms of the degree of
probability of those events occurring. The probability may be very
high – 99.9 per cent – or very low – 0.1 per cent. But unless the
chance is so low as to be regarded as speculative – say less than 1 per
cent – or so high as to be practically certain – say over 99 per cent –
the court will take that chance into account in assessing the damages.
Where proof is necessarily unattainable, it would be unfair to treat as
certain a prediction which has a 51 per cent probability of occurring,
but to ignore altogether a prediction which has a 49 per cent probability
of occurring. Thus, the court assesses the degree of probability
that an event would have occurred, or might occur, and adjusts its award
of damages to reflect the degree of probability.”
What is the situation, then, when
the issue is whether or not a patient would have declined treatment – or
would have chosen a different treatment – if warned of a particular risk
? Does the court decide such a question on the balance of probabilities,
so a finding that there was a 51% chance of the patient’s declining treatment
is regarded as the equivalent of certainty; or is it a case for an adjustment
of damages, so that a patient who is $100,000.00 worse off as a result
of the treatment, recovers $51,000.00 as compensation for the loss of the
51% chance to decline treatment?
The approach of the Queensland Court
of Appeal in Green v. Chenoweth[9] suggests
that, at least at the threshold point of determining whether or not a medical
practitioner has been negligent, one applies the balance of probabilities.
This is despite the High Court’s salutary observation in Malec v. Hutton[10]
that:
“Where proof is necessarily
unattainable, it would be unfair to treat as certain a prediction which
has a 51 per cent probability of occurring, but to ignore altogether a
prediction which has a 49 per cent probability of occurring.”
The reasoning which led the Court
of Appeal to this view deserves some analysis. Put in very simplistic
terms, their Honours considered that Malec v. Hutton[11]
was only concerned with quantifying damages once liability has been established;
it has no application to the question whether or not the defendant is liable.
To establish that a medical practitioner is liable for negligence, it must
be proved – on the balance of probabilities – that the practitioner’s negligent
failure to warn caused some loss or damage. And a plaintiff does
not discharge that onus of proof, without establishing a greater than 50%
probability that, had the appropriate warning been given, the patient would
have refused the proposed treatment.
To those who are not familiar with
the level of sophistication involved in legal reasoning at an appellate
level, it may seem surprising that the Queensland Court of Appeal interpreted
the decision of the High Court in Malec v. Hutton[12]
as meaning this: that if the question is whether a plaintiff has
suffered any loss or damage by reference to an hypothetical enquiry, you
apply the balance of probabilities; and it is only once you have established
on the balance of probabilities at least a 51% chance that the plaintiff
suffered loss or damage as a result of the defendant’s negligent acts,
that you then award damages referable to a percentage probability falling
between 1% and 99%. All other considerations aside, if the Queensland
Court of Appeal is correct, one must assume that the members of the High
Court have some difficulty with basic arithmetic, since their Honours said
that, unless the chance is less than 1% or greater than 99%, it must be
taken into account in assessing damages. The reasoning of the Queensland
Court of Appeal leads necessarily to the conclusion that one can never
take into account a percentage probability of less than 50% for the purpose
of quantifying damages, because, unless the plaintiff has established a
greater than 50% chance that he or she would have declined treatment if
an appropriate warning had been given, the plaintiff’s action fails
in limine.
Loss of a
Chance
However, there is (in my respectful
opinion) a more fundamental flaw in the reasoning of the Queensland Court
of Appeal. Where a medical practitioner has negligently failed to
give an appropriate warning concerning a particular risk which may flow
from a proposed course of medical treatment, the patient is immediately
and inevitably deprived of something of value. What the patient loses
is a chance: the chance of considering his or her options;
the chance of making an informed choice based on all relevant information;
and the chance of, perhaps, deciding not to undergo the proposed treatment.
The Queensland Court of Appeal says that such a chance is a thing of no
value, unless it was a greater than 50% chance of the patient’s declining
the proposed treatment. What I suggest to you is that the loss of
a chance is, in itself, the loss of something valuable; the percentage
probability attaching to that chance is relevant only in quantifying its
worth. The notion that a person who has been deprived of a chance
has lost nothing of value, if the percentage probability attaching to the
chance is less than 50, is – in my respectful submission – contrary to
both logic and the law. In other branches of the law, it
is well-settled that the loss of a chance is the loss of something valuable,
although the value is to be ascertained having regard to the probability
that the chance will eventuate. Consider a lottery ticket, which
represents nothing more than the chance to participate in a prize if the
number corresponding with the number on the lottery ticket is drawn from
a barrel. The ticket has no worth other than the chance which it
represents. The chance which it represents is, on any view, a very
remote one: it may be one in 500,000, or perhaps one in a million.
Yet can it be said that, if my lottery ticket is stolen, I have suffered
no loss or damage ? Perhaps a better example is that
of a race-horse; specifically, a gelding, which has no commercial value
beyond its potential for winning races. Anyone who has ever invested
in a race-horse will know that horses which makes money for their owners
are greatly outnumbered by those that don’t. Still, people pay large
sums of money for unproved blood-stock, which has no greater value than
the chance which it represents of earning prize-money which exceeds stable
and training fees. If a gelding is run-down and killed through the
negligence of a motorist, or dies through the negligence of a veterinarian,
the reasoning in Green v. Chenoweth[13] would
suggest that, for the owner to succeed in an action for damages, it would
have to be proved that there was a greater than 50% chance of the horse’s
having a successful turf career. Yet the authorities are quite to
the contrary[14]. The case of Howe v. Teefy[15]
makes this point well: in that case, the evidence showed that prize
money which the plaintiff could reasonably expect to obtain from racing
his horse was less than the cost of training, but the plaintiff’s case
was that he would have made additional profits from betting on the horse.
An award of £250 – a large sum in 1927 – was upheld by the Full Court
in New South Wales, and the Chief Justice made the following pertinent
observations[16]:
“How can it be said … that
that right was incapable of estimation in money, and that the assessment
of damages was not a matter for the jury ? The calculation which
they had to make was not how much he would probably have made in the shape
of profit out of his use of the horse, but how much his chance of making
that profit, by having the use of the horse, was worth in money.
He was willing to pay for the right when he entered into the agreement,
and, though the subsequent failure of the horse to win races was an element
to be taken into consideration in calculating the value of the chance or
right of which he was deprived, I do not think that it can be said that
by him being deprived of that right he did not suffer an injury which was
capable of being calculated in money. I think that he did, and I
think that the jury’s award cannot be interfered with.”
An extreme illustration of the principle
that a chance is a valuable thing, even if the percentage probability attaching
to the chance is less than 50, is the English case of Chaplin v. Hicks[17].
In that case, the plaintiff entered a competition promoted by a newspaper,
by which twelve women were to be selected and offered theatrical engagements.
The plaintiff made the “short list” of 50, from whom the final selection
of 12 were to be drawn. Through the defendant’s negligence, she was
deprived of the opportunity to attend an audition. Nothing in the
evidence indicated that the plaintiff’s chances of being chosen were greater
than the statistical probability of 24%; yet she was awarded £100,
and the verdict in her favour was confirmed by the English Court of Appeal.
In the light of such authorities,
one might be forgiven for wondering why the chance of electing not to proceed
with a particular form of treatment – even if the percentage probability
of such an election is less than 50% - is, in the eyes of the law (at least
as pronounced by the Queensland Court of Appeal) somehow less significant
than the loss of a chance to win the lottery, or the loss of a chance to
make prize money and successful bets on a horse, or the loss of a chance
to secure a theatrical engagement.
Anomalous
Outcomes
Yet another objection to the approach
taken by the Queensland Court of Appeal in Green v. Chenoweth[18]
is the fact that it is capable of producing very unsatisfactory results
in its practical application. To illustrate this point, I propose
to develop two parallel examples which – I should like to emphasise – are
purely hypothetical, although sharing features with cases which have previously
arisen for determination in Queensland and elsewhere. Let us start with an orthopaedic
surgeon – we will call him Dr. Orange – who, coincidentally, is consulted
by two patients – Mr. Yellow and Mr. Pink – both of whom are suffering
from equinus deformities following strokes. In each instance, the
patient is caused to walk on the toes of his right leg, with his heel lifted
off the ground. In each instance, Dr. Orange knows that there are
two possible methods of treatment for this condition: one is a soft-tissue
operation, an elongation of the Achilles tendon; the other is a bone operation,
an Arthrodesis, involving removal of a wedge of bone from the patient’s
ankle, and fusion of the remaining bones. The Arthrodesis is the
longer and more difficult procedure, but Dr. Orange is satisfied that,
having regard to the severity of each patient’s equinus deformity, it is
the preferred treatment. There is also associated with it a well-documented
risk of failure due to nonunion of the fused bones – a risk which is manifested
in a small proportion of cases. Dr. Orange fails to inform either
patient of this risk. For present purposes, we will assume that this
failure was negligent. In each instance, the Arthrodesis fails, and
the patient is effectively crippled. The medical evidence, we shall
assume, is unanimous. Without treatment, both patients would have
been able to continue walking, albeit with significant difficulty.
The soft tissue operation offered only a 60% chance of recovering normal
walking functions, but involved no significant risks. Save for the
risk of non-union, which occurs in only a tiny percentage of cases, the
Arthrodesis is invariably effective in such cases to restore the patient
to full walking mobility. In the witness-box, both patients
claim – as one would expect – that if they had been adequately warned of
the risks, they would either have chosen the soft tissue operation, or
perhaps decided against any form of operative treatment. In Mr. Yellow’s
case, the Judge – we will assume that the case is tried without a jury
– is not so certain, finding that there was a 45% chance that Mr. Yellow
would have proceeded with the Arthrodesis, even if he had been warned of
the risk which it involved; a 30% chance that, if given an appropriate
warning, he would have opted for the soft tissue operation; and a 25% chance
that he would have declined treatment by either method. In Mr. Pink’s case, the Judge’s
findings are slightly different: a 55% chance that Mr. Pink would
have proceeded with the Arthrodesis even if he had been warned of the risks
which it involved, a 25% chance that he would have opted for the soft tissue
operation, and a 20% chance that he would have declined either treatment. In each case, damages are assessed
on alternative bases. As a result of the Arthrodesis, both patients
are crippled. Without any treatment, each would have been able to
continue walking, albeit with significant difficulty. The Judge,
in each case, attaches a monetary value of $100,000.00 as compensation
for the difference between being crippled, and being able to walk with
considerable difficulty. But in each case, there was also a chance
of undergoing an Elongation of the Tendo Achilles which – if it was successful,
bearing in mind that (according to the evidence given in each case) such
operations are successful in only 60% of cases – the patient would have
been restored to normal walking function. In each case, a monetary
value of $200,000.00 is placed on the difference between being crippled,
and being restored to normal walking function. Let us deal, first, with Mr. Yellow.
As can be seen, his situation is this. There was a 45% chance that
he would have gone ahead with the Arthrodesis even if an appropriate warning
had been given to him. There was a 30% chance that he would have
opted for the soft tissue operation, and a 60% chance that it would have
succeeded, producing an over-all 18% chance that his equinus deformity
would have been successfully corrected. This leaves a 37% chance
that he would still suffer from the equinus deformity, either because he
opted for the soft tissue operation and it failed, or because he declined
treatment altogether. You might think it perfectly logical
that, in these circumstances, Mr. Yellow should recover 18% of $200,000.00,
to compensate him for the loss of the chance to have his deformity corrected,
and 35% of $100,000.00 to compensate him for the loss of the chance to
be able to walk, albeit with an uncorrected equinus deformity. On
this basis, the award in favour of Mr. Yellow would be $73,000.00. However, the reasoning in Green
v. Chenoweth[19] would suggest that one does not
apply percentage probabilities, but rather the balance of probabilities
– the “all or nothing” approach. If this approach is pursued to its
logical conclusion, the outcome in Mr. Yellow’s case against Dr. Orange
is very different. As there is only a 45% chance that Mr. Yellow
would have proceeded with the Arthrodesis had he been given an appropriate
warning, it is found as a fact that he would not have proceeded with that
particular operation. As it is more likely that he would have opted
for the soft tissue operation, rather than no operation at all, it is assumed
that he would have done so. And as there is a 60% chance that this
operation would have succeeded, it is presumed that the operation would
have been a success. On this basis, the patient recovers almost three
times the damages which he would have recovered based on the percentage
probabilities methodology – the sum of $200,000.00, representing his “best
case scenario” of having undertaken the soft tissue operation, and of that
operation’s having been successful. In Mr. Pink’s case, the percentage
probability method of quantifying damages leads to a marginally lower total
award. This is only to be expected, since, on the findings made in
his case, there was a 55% chance that he would have proceeded with the
Arthrodesis even if he had been warned of the risks which it involved,
only a 25% chance that he would have opted for the soft tissue operation,
and a 20% chance that he would have declined either treatment. Even
so, he has lost a 25% chance of opting for a soft tissue operation, which
in turn offered him a 60% chance of correcting his deformity; so he is
awarded 60% of 25% of $200,000.00, for the loss of that chance. And
he has also been deprived of the chance to retain his mobility, with an
uncorrected equinus deformity, either because he might have refused any
treatment, or because the soft tissue operation might have failed.
Thus, by this methodology, he recovers $60,000.00, compared with Mr. Yellow’s
$73,000.00. However, if the reasoning in Green
v. Chenoweth[20] is applied in Mr. Pink’s case,
he does not recover a single cent. This is because there is found
to be a 55% chance that he would have proceeded with the Arthrodesis, even
if he had been warned of the risks; and, according to the “all or nothing”
approach, a 55% probability – indeed, anything over a 50% probability –
is assumed to be the equivalent of absolute certainty. When these outcomes are compared,
it seems absurd that, according to the reasoning of the Queensland Court
of Appeal, Mr. Yellow should recover very substantial damages whilst Mr.
Pink recovers nothing, merely because there was a marginally greater possibility
that Mr. Pink would have proceeded with the Arthrodesis if warned of the
risks involved, as compared with the possibility that Mr. Yellow would
have done so. The reality is that, in each case, there was a real
and distinct chance – a substantial chance – that the patient would be
better off if it were not for Dr. Orange’s negligent failure to warn the
patient of the risks involved in undergoing a particular surgical treatment.
The fact that a patient like Mr. Yellow can recover substantial damages,
whilst a patient like Mr. Pink walks away empty handed, makes the law itself
look very much like a game of chance. It is appropriate, I think, to revisit
the High Court’s remark in Malec v. Hutton[21]:
“Where proof is necessarily
unattainable, it would be unfair to treat as certain a prediction which
has a 51 per cent probability of occurring, but to ignore altogether a
prediction which has a 49 per cent probability of occurring.”
The fictional cases of Yellow v.
Orange and Pink v. Orange, and the real case of Green v. Chenoweth,
demonstrate how such unfairness is manifested when a patient is deprived
of recovering any damages for a medical practitioner’s proved negligence,
merely because the court’s estimate (or “guesstimate”) of the percentage
probability that the patient would have declined treatment, but for the
medical practitioner’s negligent failure to warn is less than 50%.
Chappel
v. Hart
This brings me to the High Court’s
most recent pronouncement – at least, until yesterday – on this area of
the law: the case of Chappel v. Hart[22],
in which judgment was delivered on 2 September 1998. It was a difficult
case, in which the appeal was dismissed by a majority of three to two.
Because of the nature of the case, the way in which it was argued, and
perhaps the way in which factual findings were made at first instance,
the specific issue canvassed by the Queensland Court of Appeal in Green
v. Chenoweth[23] did not arise; indeed, it is notable
that Green v. Chenoweth is not even cited in the Reasons for Judgment
of the High Court. Nonetheless, there are passages
in some of the judgments which suggest that the High Court may not be averse
to compensating a plaintiff for the loss of a chance, even if the chance
is a less than 50% one: certainly, Justices Gummow[24]
and Kirby[25] expressed themselves in language suggestive
of a willingness to embrace such an approach, whilst McHugh J.[26]
(who was in the dissenting minority) was at pains to point out that the
particular case under consideration was:
“… not a case concerned
with ‘loss of a chance’ as that phrase is understood in the many cases
that have come before the courts since [it was] authoritatively decided
that a loss of chance or opportunity was compensable in damages.”
Conclusions
To this audience, it may appear
that the decision in Green v. Chenoweth is a favourable one for
members of the medical profession. In one sense, it is. If
the principles which it enunciates become settled law, every plaintiff
claiming damages in a “failure to warn” case will fail, unless the plaintiff
can prove a greater than 50% chance that he or she would have declined
treatment – or opted for different treatment – if an appropriate warning
had been given. What must be recognised, however,
is that Green v. Chenoweth[27] was an unusual
case. For one thing, it was tried by a Judge sitting alone, whereas
many medical negligence actions are determined by juries. Another
complication is the fact that counsel who appeared for the plaintiff at
first instance conceded, and indeed conducted the plaintiff’s case on the
footing, that he had to establish a greater than 50% probability that she
would have declined treatment if warned of the relevant risks. Assuming that the principles enunciated
in Green v. Chenoweth become settled law, what will be its impact
in other cases, not possessing these particular features ? Frankly,
I doubt that there will be many cases where a tribunal of fact – whether
it is a judge or a jury – will find in favour of a medical practitioner
on the basis that, although the medical practitioner was negligent in failing
to warn the patient of a material risk, there is a less than 50% chance
that the patient would have heeded the warning if it had been given.
As Kirby J. remarked in Chappel v. Hart[28]:
“Where a breach of duty
and loss are proved, it is natural enough for a court to feel reluctant
to send the person harmed (in this case a patient) away empty handed.”
It may sound cynical to suggest
that, if courts have to find a greater than 50% probability that the patient
would have declined treatment (or chosen a different treatment) if duly
warned of the relevant risks, then that is what courts will find in such
cases, especially when the tribunal of fact consists of a jury. Such
cynicism is founded on the fact that juries have a long tradition of arriving
at the findings which are necessary in order to support what they regard
as a just result. In the Eighteenth Century, juries in theft cases
regularly found that the value of the property stolen was four pounds,
nineteen shillings, eleven pence and three farthings, because they knew
that a conviction for stealing more than five pounds attracted the death
penalty. One might also mention the famous incident when a Queensland
jury, in a “cattle-duffing” case, returned the verdict: “Not guilty,
so long as he gives the cattle back”. After angry remonstrations
from the presiding Judge, they were sent away to give the matter further
consideration, and returned with the verdict: “Not guilty, and he
can keep the cattle”.
Paradoxically, I would suggest that
the principle in Green v. Chenoweth – if it becomes settled law
– will not significantly reduce the number of cases in which judgment is
given against a member of the medical profession, but may significantly
increase the damages awarded in such cases. If the “percentage probability”
methodology is used, to compensate plaintiffs for the loss of the chance
to decline treatment or opt for alternative treatment, the range of possible
awards is anything from 1% to 100% of the plaintiff’s “best case scenario”.
Applying the “all or nothing” methodology in Green v. Chenoweth[29],
the minimum recoverable by a plaintiff is 50% of the “best case
scenario”, since a finding of less than 50% probability that the plaintiff
would have declined treatment or elected for alternative treatment results
in a judgment for the defendant. A court, and especially a jury,
which is inclined to give a “sympathy verdict” for the plaintiff will have
no option but to award the plaintiff at least 50% of the plaintiff’s “best
case scenario”. The other potential consequence,
if the decision in Green v. Chenoweth[30] becomes
settled law, is that the legal advisers to plaintiffs in medical negligence
actions will look for new ways to circumvent this decision. At the
heart of the reasoning in the Court of Appeal was the principle that tortious
negligence is not actionable without proof that loss or damage was sustained
as a result of the negligent conduct. This element is not present
in other causes of action which may be pleaded against medical practitioners.
If the plaintiff can sue for breach of contract – and in almost every instance,
a medical practitioner’s breach of a tortious duty of care also involves
a breach of the practitioner’s implied contractual duty of care – liability
may be established without proof of loss or damage, leaving the court to
assess damages in accordance with the “percentage probability” methodology
discussed in Malec v. Hutton[31]. There
is also the spectre that medical practitioners will more often be sued
for trespass to the person – that is to say, assault and battery – as is
the case in the United States. The argument which has some currency
in American jurisprudence is that, unless the patient has been adequately
warned of all risks associated with a particular treatment, the patient
cannot give “informed consent” for the treatment; and in the absence of
“informed consent”, any form of medical treatment constitutes an assault.
The cause of action for trespass to the person, like the cause of action
for breach of contract – and unlike the cause of action for tortious negligence
– is actionable per se: the plaintiff can succeed without proving,
on the balance of probabilities, that the defendant’s conduct was causative
of any loss or damage. It is, however, equally important
that the law retain some degree of rational unity and logical consistency.
These are not characteristics of a legal system which recognises the right
of a race-horse owner to be compensated for the lost chance of winning
prize-money or bets, but does not recognise a patient’s entitlement to
be compensated for the lost chance of electing not to be treated, or of
electing for a different form of treatment, where a medical practitioner
has negligently failed to warn the patient of the risks inherent in a proposed
course of treatment. Nor are rational unity and logical consistency
features of a legal system which, as I believe I have demonstrated, may
provide either substantial compensation or nothing at all, depending upon
whether the tribunal of fact finds that the plaintiff falls over the 50%
threshold for recovering damages in “failure to warn” cases.
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