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Negligence in surgeon’s failure to give warning of slight risk

The successful completion of surgery on a patient did not exonerate the surgeon from liability in negligence if, when seeking the patient’s consent to the operation, he had failed to give warning of the slight risk of post-operative paralysis which the patient suffered following the operation.

The Court of Appeal so held when dismissing an appeal by the defendant, Fari Afshar, a neuro-surgeon, from Judge Robert Taylor, sitting as a Queen’s Bench Division judge, who on December 21, 2000 had held that he was not negligent in the conduct of his operation on the claimant, Carole Gay Ogilvy Chester, but was negligent in failing to warn her the slight risk of paralysis which she in fact suffered.

Mr Martin Spencer for Mr Afshar; Miss Jacqueline A Perry for Ms Chester.

Sir Denis Henry, giving the judgment of the court, said that in principle there seemed to be little difficulty in attributing causative responsibility to a doctor who had in breach of duty failed to draw a particular risk to his patient’s attention if in the event that particular risk materialised.
The purpose of the rule requiring doctors to give appropriate information to their patients was to enable the patient to exercise her right to choose whether or not to have the particular operation to which she was asked to give her consent.

English law had rejected the proposition that a failure to give adequate warning vitiated the patient’s consent, thus turning the operation into an assault: see Chatterton v Gerson ([1981] QB 432). Liability lay in negligence rather than in trespass.

But the patient still had the right to choose what would and would not be done with her body and the doctor should take the care expected of a reasonable doctor in the circumstances in giving her the information relevant to that choice.

The law was designed to require doctors properly to inform their patients of risks attendant on their treatment and to answer questions put to them as to that treatment and its dangers, such answers to be judged in the context of good professional practice, which had tended to a greater degree of frankness over the years, with more respect being given to patient autonomy.

The object was to enable the patient to decide whether or not to run the risks of having that operation at that time. If the doctor’s failure to take the care resulted in her consenting to an operation to which she would not otherwise have given her consent, the purpose of that rule would be thwarted if he were not to be held responsible when the very risk about which he failed to warn her materialised and caused her an injury.

In the end, therefore, all those considerations had led the court to the same conclusion as the majority in Chappel v Hart ((1998) 72 AUR 1344) who held that a doctor was liable in negligence in failing say before a throat operation that it carred a slight risk of weak voice, which the patient suffered following the operation. The judge was right to follow that case.


“The Times” 13th June 2002