Tortious Liability for Negligent Misdiagnosis of Learning Disabilities: A Comparative Study of English and American Law

Tortious Liability for Negligent Misdiagnosis of Learning Disabilities: A Comparative Study of English and American Law* I. INTRODUCTORY REMARKS George Bernard Shaw once remarked that and America are two countries separated by a common language.1 That statement could be modified to read that England and America are two countries separated by a common legal heritage. The comparison of the two systems in the area of negligent misdiagnosis of learning disabilities suggests as much. For though it reveals no significant difference-not at least until the very recent decision of the House of Lords in Phelps v. Hillingdon LBC2-in their approach towards liability at common law, it does bring into relief the differences which produce the real divergence between English and American law. These include, inter alia, the existence in America of civil jury trials, contingency fee arrangements, punitive damages, and dual court systems of overlapping jurisdiction at the state and federal levels. The imposition of liability in America thus brings with it unusually high transaction costs of defending and prosecuting claims, as well as the possibility (albeit rare) of awards that are so large that defendants could be bankrupted. None of these factors exist in England to such a pronounced extent. That the true differences between English and American law must be sought in fundamental differences in the backdrop of the two systems was the main thesis of the late Professor Fleming in his stimulating monograph THE AMERICAN TORT PROCESS, published in 1987.3 But this imaginative thesis has often been forgotten on both sides of the Atlantic; and in England, where references to American law have, if anything, increased in recent times, they have been accompanied by some unfortunate misunderstandings. Thus, the House of Lords has been castigated by an eminent New Zealand judge,4 who subsequently joined the Lords, for erroneously believing a decision of the United States Supreme Court5 in a matter of federal jurisdiction as representing the tort law in the various states. And in the Phelps case, to be discussed further down, we shall see that neither Counsel nor the judges who heard the dispute seemed to be aware of the intricate richness of American federal and state law, which complement the solutions of pure common law. In particular, the American Individuals with Disabilities Education Act (IDEA) seems never to have been mentioned.6 By contrast, the United States Supreme Court has apparently felt less and less inclined to cite foreign cases. This was not always so since that Court at one time felt compelled to fit its decisions into a broader Anglo-American jurisprudence. For instance, in the 1953 Dalehite v. United States decision,7 the Court cited English, Canadian, Australian, and New Zealand authorities for support of a discretionary function exception to the federal government's waiver of sovereign immunity.8 The 1999 case Alden v. Maine,9 however, is perhaps representative of the Court's current reluctance to cite contemporary English case law. It would seem that the law of England is nowadays of interest to today's justices only to the extent that 18th century authorities influenced the Founders and their understanding of the Constitution.10 Similarly, state courts often refer to the common law of England, but increasingly confine their citations to English cases from before their establishment as separate courts.11 One of the purposes of this article is therefore to remind the reader that in these days of increasing globalisation, awareness of how sister courts have handled similar issues may be a source of inspiration and benefit. At the same time, however, one must also undertake such endeavours conscious of the dangers of the comparative use of foreign material. This article is thus as much an attempt to inform American judges about developments in English law as it is to suggest to academics and practitioners-on both sides of the Atlantic-a way of using foreign law before national courts. …

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