Commentary

This case is important for expert healthcare experts in delayed-diagnosis cases in Scotland, being brought under the Damages (Scotland) Act 2011, s 3,  but, relying on an English case, it may be relevant to healthcare experts outside Scotland. In a conventional causation case, an expert may be asked: ‘Would the patient have survived but for the alleged negligent delay?’ This case concerns whether the alleged breach of duty caused the loss of a chance of a better outcome.

This could be significant in cancer litigation. The case proceeds on the basis that a progressive disease can be accompanied by a legally relevant injury even though the underlying disease remains incurable. The court considered that a delayed diagnosis could, in principle, constitute an impairment of physical condition and therefore a "personal injury" for the purposes of the legislation. In such a case the court wants to know more than that "the cancer was incurable".

Although the expert can explain the medical consequences of the alleged delay -  disease progression, prognosis, treatment options, survival and symptoms - whether those facts satisfy "in consequence of" under section 3 is ultimately a question for the court.

What this case does not establish is that: a delayed diagnosis is automatically a "personal injury"; a negligent delay automatically establishes causation; any reduction in life expectancy is sufficient to prove liability; experts can use statistical survival data without individualising the analysis; a claimant only needs to show that death was accelerated.

For Scottish clinical-negligence experts, this can be regarded as a signal to make time-of-death and counterfactual prognosis explicit wherever a patient has died from an underlying disease that would have remained fatal.

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