The legal uncertainty from the 2004 New South Wales Court of Appeal decision in Rufo v Hosking has ended. In an unanimous decision, the High Court of Australia has held in Tabet v Gett that damages are not available for the loss of a chance of a better medical outcome unless the plaintiff can prove, on the balance of probabilities, that he or she would have had a better outcome had the defendant not been negligent.
A six year old girl named Reema Tabet was admitted to hospital in 1991 after recovering from chickenpox. She was suffering headaches and nausea, and was vomiting. Dr Maurice Gett, a paediatrician made a provisional diagnosis of post-chickenpox viral encephalitis. Unfortunately, Reema later suffered a rapid deterioration in her neurological condition and had a seizure. A CT scan revealed a brain tumour (that had been growing for 2 years). Reema underwent surgery to remove part of the tumour but was subsequently diagnosed as having suffered irreversible brain damage. The expert evidence that Reema adduced at trial supported a finding that Dr Gett should have arranged for her to have a CT scan before her condition had deteriorated. Gett appealed.
After reviewing the expert evidence, the Court of Appeal held that Reema’s loss of a chance of a better outcome ranged between ‘speculative’ and ‘some’. It ultimately settled on a finding that Reema had lost only a 15% chance (as opposed to the trial judge’s 40%) of avoiding the brain damage she complained of. This being the case, the Court of Appeal concluded that Reema had not proven on the balance of probabilities that she had suffered any brain damage as a result of Dr Gett’s breach of duty to her.
The question at the centre of Reema’s appeal to the High Court was whether the common law of Australia should recognise that the loss of a chance of a better medical outcome is actionable in damages. After considering the central question, the development of the common law in other countries and the expert evidence led at trial, the High Court dismissed Reema’s appeal.
Loss of chance claims in medical negligence litigation appear now to be a thing of the past. Plaintiffs should now only be awarded damages for the loss of a proven better outcome, not a percentage of that loss based on the probability (or improbability) of the outcome occurring. This return to a balanced law will be of comfort not only to medical indemnity insurers, but also to the medical profession working in an already financially-strained healthcare system, which has limited capacity to manage ‘defensive medicine’.