Missed femoral epiphyseal fracture – Hotson case

In April 1977 Stephen Hotson, aged 13, fell from a tree and was taken to the local accident department. He was examined by the casualty officer and sent home where he remained in pain for some five days. (Indeed, separate allegations were subsequently levelled against the GPs who saw him during this time, but this action was discontinued when the matter came to trial.)

He was taken back to hospital and a diagnosis of acute traumatic fracture of the left femoral epiphysis was made. Surgical rescue was attempted the following day by manipulation and reduction of the fracture and pinning of the joint, but avascular necrosis of the epiphysis had become established and the patient was left with severe disability.

The MDU's expert orthopaedic surgeon firmly advised that, from the moment that the patient sustained the injury, the hip was doomed but it was recognised that there would have to be an admission of liability for the pain and suffering that was undoubtedly caused by the five days' delay in diagnosis.

Negligence had to be admitted but it had made no difference at all to the eventual outcome and, even if the diagnosis had been made when the patient first attended, there would have been no realistic prospect of rescue in any event.

Negotiations to dispose of the claim by way of settlement met with stiff resistance and the matter was tried in the High Court. With the existing admission of liability, the judge was only concerned to determine if causation was established and, if so, what was the proper measure of compensation.

Recognising responsibility for five days' delay, there was no argument in the judge's award of £150 to the patient to cover this period. On the question: did the admitted negligence cause the patient's injury? the expert evidence was divided.

For the patient, it was argued (in distinctly non-legal terminology) that there had been a small chance of rescue; though the plaintiff's expert later felt that rescue would have been 'likely but not probable' if there had been earlier diagnosis.

It should be borne in mind that (unlike a criminal court, where matters have to be proved beyond reasonable doubt) a judge trying an action for negligence has to determine what matters are probable (which in a case of this nature meant what was more than 50 per cent likely). If the judge wholly accepted the patient's expert's evidence, rescue was less than 50 per cent likely to have been achieved; whereas it was strongly argued for the defence that the chance of such rescue was never even a reality.

The judge took the view that there had been a 25 per cent chance of rescue, and that that chance had been lost by the delay in diagnosis. He then determined that upon full responsibility, the damages would have been £46,000, and he therefore discounted the award by 75 per cent and gave the plaintiff £11,500 for the lost chance of recovery.

This decision gave rise to considerable concern. In theory at least, a claim could be mounted against a doctor if it could be established that there had been negligence (such as delay in diagnosis) which had denied a patient even a one per cent chance of recovery.

It was feared that there might follow a succession of claims based upon such remote chances where, even if the damages claimed were tiny, the doctors would be faced with all the anxiety and concern that any claim can bring. The decision in the Hotson case seemed to go to the basis of the civil law, that a patient no longer needed to prove causation on the balance of probability that the negligence caused the injury.

An appeal was duly made and was heard in the Court of Appeal. After exhaustive legal argument they rejected the appeal unanimously. In his judgement the Master of the Rolls confirmed the approach adopted by the Judge and appeared to create a new head of damage which would award compensation for the loss of a chance of timely treatment. Acknowledging this, the Court of Appeal refused leave to appeal to the House of Lords.

The final avenue in such circumstances is to seek leave from the House of Lords themselves, and this was undertaken. The patient was legally aided with a nil contribution and he was indemnified so that, in the event of a successful appeal, the award would be safe in his hands.

Their Lordships granted leave to appeal. Judgement was given and the House of Lords unanimously allowed the appeal to the extent of reducing the damages awarded. However, notwithstanding the same extensive legal argument that encompassed a wide review of the common law principles applicable to such cases, their Lordships declined to make a general statement of the law and preferred, instead, to deal very much with the particular facts of the case. Their Lordships declined to award costs to the successful appellant and each side was left to bear its own costs.

Thus, a little over ten years after the original injury, the patient's award was secured and the law was, to some extent, re-established in the homely common law position that it had been thought to be, before this case arose.

In noting their Lordships' reluctance to make a general statement of the legal principles involved, it is difficult to imagine a case where legal argument would be more fully expounded or where the relevant precedents would be more thoroughly displayed. It is, however, increasingly felt that a patient who cannot prove a likelihood of rescue (but for the negligence) is unlikely to succeed.

Apart from the costs point mentioned, there is a further point that arises out of this judgement. If a patient does prove that it was likely that he could have been rescued, but for the negligence, then the courts will not concern themselves with exactly where between 51 per cent and 100 per cent, that likelihood rests.

If a patient gets over the first hurdle, that there was a chance lost, then he is going to claim that he is entitled to a full award of damages without any discount, even if there was, say, a 40 per cent chance that the outcome would have been the same in any event.

The MDU and its advisers welcome certainty in the law and will always, where the proper opportunity presents itself, strive to ensure that such certainty is secured through the courts. It seems, however, that there can be a heavy price to pay.

This page was correct at publication on 01/01/2002. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.