Reconfiguring harm in medical torts: lost chances of a better outcome

Topic: Reconfiguring harm in medical torts: lost chances of a better outcome

Presenter: Ms Laura Hoyano - Wadham College, University of Oxford

Medical tort law treats a patient's chance of a full (or improved) recovery estimated at less than 51% as never having existed, and a chance of 51% or better as having become a certainty. The highest courts in the UK and Australia have recently confirmed this 'all or nothing' solution as the orthodox approach to causation in medical cases, although it is not applied in establishing liability for other incompetent professional services. I will argue that the current approach is misconceived because it conflates the burden of proof with the standard of proof. This incoherence becomes apparent and indefensible when the causation tests for medical and legal negligence are compared. The professional duty in both is to protect and secure an opportunity of a better outcome for the patient or client in responding to a pre-existing problem which the professional had no hand in creating. The 'loss of a chance' approach to factual causation in all lawyers' negligence cases trims the quantum of liability to the scope of the duty breached. I will propose criteria for establishing factual causation which would entirely supplant the 'all or nothing' approach to medical torts, eliminating the 'rough justice' thought acceptable by Lord Phillips in Gregg v Scott.

All welcome, no RSVP required.

Contact: Beth Williams, ph: 334 69350, email: marketing@law.uq.edu.au