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Date: Fri, 11 May 2007 14:34

From: Michael Jones

Subject: Good news/bad news


I agree with Robert on this point (I think - therefore I do not guarantee [after Descartes?]).

If my solicitor negligently advises me that my action against a third party has very good prospects of success, and I go ahead with the claim but lose, my subsequent action against my solicitor for the costs of the initial litigation is on the basis that he has been negligent in advising me and I relied upon that advice, sustaining loss as a result. I am not claiming on the basis that the solicitor guaranteed that I would win the case.

When doctors come up with a prognosis involving an estimate of life expectancy, no-one (not even the most naive patient) could think that it was anything more than an estimate. On the other hand, if the doctor's estimate was 6 months and the patient lived for 20 years, we could reasonably conclude that the doctor got it seriously wrong, though whether it was negligently wrong would depend on more than just the outcome itself.

On the other hand, I don't think (again, no guarantees) that disclaimers are the solution. For me, the real issue is the nature (or scope, or extent) of the doctor's duty. I'm not a fan of assumption of responsibility [there are almost no criteria for deciding when it does or does not apply; and in any event tort duties are imposed not "assumed" by the defendant - there are by now plenty of judicial dicta indicating that defendants are "deemed" to have assumed responsibility, which is just another way of saying "In all the circumstances we consider that you are responsible", which is no different from what the HL did in Donoghue v Stevenson].

Since no-one has (yet) dissented from the proposition that where a false positive diagnosis induces depression and results in suicide the doctor should be liable for the foreseeable consequences, the only difference between this and the good news/bad news patient is the nature of the loss (purely financial). We might legitimately want to protect the health service from claims in respect of pure economic loss, but if that is the case, then I think we should be up front about the policy judgment, rather than scrambling about in the thickets of disclaimers and assumptions of responsibility.



Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829

From: Robert Stevens
Sent: Fri 11/05/2007 13:41
Subject: RE: [Fwd: [Fwd: ODG: RE: Good news/bad news]]

Allan wrote:

For my part, I can't see why any disclaimer would be required. Giving a prognosis to a patient of the following kind "In light of the evidence, it is our opinion that you will live for x months" is not the giving of a guarantee that the patient will die in x months. It is not the assumption of responsibility for the patient ceasing to exist in x months. Moreover, it is surely common knowledge that prognoses are not always accurate. As such, in the case we are discussing, I would have thought that the patient could recover only if (not if) the hospital gave him the impression that he definitely was going to die in the stated time.

I disagree, although as two members of the House of Lords were persuaded in OBG that it is possible to convert intangibles I suppose anything must now be thought arguable. Indeed as Duncan is of the same view it cannot be completely hopeless.

Nobody was suggesting that there was a guarantee that he'd be dead in x months. It is incorrect to state that the hospital is liable if, and only if, it states "you'll be definitely be dead in x months".

A statement of opinion of the kind relied upon by the lucky/unlucky guy contains, at least, two statements of fact:

(i) The hospital has SOME basis for this prognosis;


(ii) This prognosis has been made with reasonable care and skill.

It is the latter which the hospital is assuming responsibility for, not that he'll definitely be dead at a certain point. On the latter see Esso Petroleum Ltd v Mardon [1976] QB 801, in particular Lord Denning. It is the latter that the lucky/unlucky guy relies upon. That is why his complaint is that they have been negligent, not just that he relied upon an undertaking made by the hospital.

The statement that they have exercised reasonable care and skill in reaching the prognosis is not just a statement of opinion.

The bank in Hedley Byrne were not guaranteeing that their customer was creditworthy either.

In order to avoid the imposition of liability, you need to show that the duty assumed did not cover this loss. This must be either be done explicitly (through a disclaimer) or be shown to be implicit (as Andrew argues).



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