This notion of ‘loss of a chance of a better outcome’ can be explained as follows:
- A medical practitioner who fails to diagnose a patient’s medical condition, in circumstances where a competent medical practitioner would have diagnosed and started treatment for that condition, is on the face of it negligent.
- If the treatment that would and should have been commenced upon diagnosis, may not necessarily have made a difference in the patient’s overall outcome, but would have given them the chance of a better outcome, then this is considered loss of a chance.
The majority of people would undoubtedly say that loss of this chance of a better outcome is something of value and should be able to be pursued in a claim of compensation. This was in fact upheld in a number of court decisions. However the High Court has now decided on this issue in the case of Tabet v Gett and ruled that loss of a chance of a better outcome cannot be pursued.
Facts of Tabet v Gett
Six year old Rema Tabet suffered a seizure in hospital on 14 January 1991 as a result of an undiagnosed brain tumour. She was left with irreversible brain damage.
The previous morning, a nurse observed Rema to be unresponsive and staring. The central allegation was that Dr Gett should have ordered a CT scan upon being advised of the nurse’s observations. If the scan had of been performed that day, the brain tumour would have been detected and treatment, which would have most likely been steroids, would have been commenced that morning. This would have reduced intracranial pressure and limited the risk of brain damage before the tumour was surgically removed.
Had Dr Gett ordered a CT scan on the morning of 13 January 1991, the Court of Appeal found that there was a 15% chance of avoiding the seizure and consequent deterioration of Rema’s condition on 14 January 1991.
In a unanimous judgment from the High Court, it was held that the law of negligence in Australia does not permit an action for recovery when the damage claimed is the loss of a chance of a better outcome.
The court held that the rule requiring proof of damage on the balance of probabilities, remained the applicable test.
What does this mean?
To explain this in simple terms, when you allege that negligent conduct has occurred, a plaintiff must show that there is a connection between the damage they are suffering and the negligent conduct.
The law requires that in order to prove this connection, one must show that the negligent action ‘more probably than not’ caused the damage that the plaintiff suffers.
This means that an injured patient cannot recover damages where, by reason of the doctor’s negligence, the patient has lost a chance to be cured or to have a better medical outcome when that chance is less than 51%.
Where to from here?
In going forward with actions for negligent treatment resulting in a delayed diagnosis of a condition, evidence will be needed to show that there is a greater than 50% probability of avoiding the resulting damage had an earlier diagnosis occurred.
These would be situations where statistical evidence is available that treatments forgone would have made a difference (that is, probability over 50%).
This is a complex area of law and if you believe that you have lost the chance of a better outcome because of negligent medical treatment it is best to contact a law firm to ensure that any potential rights are not lost. At Henry Carus + Associates one of our lawyers in this area will be able to discuss these types of claims in further detail with you to determine whether legal action can be pursued.