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Hotson V E Berkshire Ha Notes

Updated Hotson V E Berkshire Ha Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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Hotson v E Berkshire HA [1987] AC 750

House of Lords

Facts

H fell out a tree, injuring his leg. When he went to hospital, the doctor negligently failed to diagnose the problem correctly, with the result that H had to have his leg amputated. Had H had prompt treatment, he would have had a 25% chance of saving the leg, but still a 75% chance of losing it.

Issue

Loss of chance

Held Lord Bridge

  • The failure of the blood supply to the epiphysis which caused the avascular necrosis could itself only have been caused in one of two ways:

    • either the injury sustained in the fall caused the rupture of such a high proportion

    • or the blood vessels remaining intact were sufficient to keep the epiphysis alive

      • but were subsequently occluded by pressure within the joint caused by haematoma

  • In some cases, perhaps particularly medical negligence cases, causation may be so shrouded in mystery that the court can only measure statistical chances.

    • On the evidence there was a clear conflict as to what had caused the avascular necrosis.

      • The authority's evidence was that the sole cause was the original traumatic injury to the hip.

      • The plaintiff's evidence, at its highest, was that the delay in treatment was a material contributory cause.

    • This was a conflict, like any other about some relevant past event, which the judge could not avoid resolving on a balance of probabilities.

      • Unless the plaintiff proved on a balance of probabilities that the delayed treatment was at least a material contributory cause of the avascular necrosis he failed on the issue of causation and no question of quantification could arise.

      • But the judge's findings of fact are unmistakably to the effect that on a balance of probabilities the injury caused by the plaintiff's fall left insufficient blood vessels intact to keep the epiphysis alive.

        • This amounts to a finding of fact that the fall was the sole cause of the avascular necrosis.

  • Would it be ever attractive to award for a loss of chance?

    • There is a superficially attractive analogy between the principle applied in such cases as Chaplin v Hicks

      • and the principle of awarding damages for the lost chance of avoiding personal injury

      • or for the lost chance of a better medical result which might have been achieved by prompt diagnosis and correct treatment.

    • I think there are formidable difficulties in the way of accepting the analogy.

      • But I do not see this appeal as a suitable occasion for reaching a settled conclusion as to whether the analogy can ever be applied.

        • As I have said, there was in this case an inescapable issue of causation first to be resolved.

          • But if C had proved on a balance of probabilities that the authority's negligent failure to diagnose and treat his injury promptly had materially contributed to the development of avascular necrosis,

            • I know of no principle of English law which would have entitled the authority to a discount from the full measure of damage to reflect the chance that, even given prompt treatment, avascular necrosis might well still have developed

Lord Mackay

  • what was the plaintiff's condition on being first presented at the hospital? Did he have intact sufficient blood vessels to keep the affected epiphysis alive?

    • The judge held that it was more probable than not that insufficient vessels had been left intact by the fall to maintain an adequate blood supply to the epiphysis

    • and he expressed this balance by saying that it was 75 per cent. to 25 per cent

  • In the circumstances of this case the probable effect of delay in treatment was determined by the state of facts existing when the plaintiff was first presented to the hospital.

    • ...

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