A heavily debated notion driven from different perspectives has been the role of tort in medical negligence claims. If in both cases a doctor breaches his duty of care and the patient is worse off; what is the difference between 45% - 55% to stand in the way of recovering something the patient held as important and of value? Is it justified to declare one person a remedy and another not purely by their percentage points of recovery when medical uncertainty is a factor? Here, the answer is sought to whether there should be compensation for the loss of chance in medical negligence cases.
Gregg is a prime example where perspectives have clashed concerning loss of chance. The 3:2 majority saw no legal acknowledgement of loss of chance but the judgements voiced concern of the legitimacy of the balance of probabilities. Lord Nicholls highlights the arbitrary nature of the 50% barrier restricting eligibility of claimants who had suffered as a result of medical negligence holding favour to patients having “a right to a remedy as much where his prospects of recovery were less than 50-50 as where they exceeded 50-50 ”. A moral consideration but arguments of policy considerations blocks concepts like this. Growing concern for the immunity held by professions saw developments in the law, however the loss of chance is yet to be clarified. The diverse nature of medicine and the hypothetical aspect of evidence relied upon means no one formula will ever be adequate for determining the duty owed and the extent on liability. This is all dependent on the individual traits of the case and the consequences which may be provoked from the judgements. Policy concerns restrict the liability of these professions to protect general interest and prevent ri...
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...ilo v City and Hackney Health Authority  AC 232
Caparo v Dickman  2 AC 605
Chester v Afshar  1 AC 134
Fairchild v Glenhaven Funeral Services  1 AC 32
Gregg v Scott  UKHL 2,  4 All ER 812
Hill v Chief Constable of West Yorkshire  AC 53
Hotson v East Berkshire Area Health Authority  AC 750
Kitchen v Royal Air Force Association  1 WLR 563
Mulcany v Ministry of Defence  QB 732
Majrowski v Guy’s and St. Thomas’s NHS Trust  1 AC 224
Osman v United Kingdom  29 EHRR 245
Philip v Ryan  1 IESC 105
Ridehalgh v Horsefield  Ch 205,  3 All ER 848
Sidaway v Governors of the Bethlem Royal Hospital  1 AC 871
Sienkenweiz v Greif (UK) Ltd  2 AC 229
Spring v Guardian Assurance  2 AC 296
Wilsher v Essex Area Health Authority  AC 1075