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    Negligence in failure to warn patient of slight inherent risk in surgery

    A patient, whose doctor failed to warn her of an inherent risk in surgery when obtaining her consent who suffered injury when the risk eventuated, satisfied the test for causation in negligence where she could prove that, had she been properly informed, she would not have undergone the operation which was in fact performed.

    The House of Lords so held, Lord Bingham and Lord Hoffmann dissenting, when dismissing an appeal by the defendant, Fari Afshar, from the dismissal by the Court of Appeal (Lady Justice Hale, Sir Christopher Slade and Sir Denis Henry) (The Times June 13, 2002; [2003] QB 356) of his appeal from Judge Taylor, sitting as a judge of the Queen’s Bench Division, who had entered judgment in favour of the claimant, Carole Chester, on her claim for damages for personal injury.

    The defendant, a neurosurgeon, advised the claimant to undergo lumbar surgery. She consented and following the operation suffered partial paralysis.

    The judge found that, although the defendant had not performed the operation negligently, he had failed to warn the claimant of the small risk of partial paralysis inherent in the operation.

    The judge also found that had she been warned, the claimant would not have consented to the operation taking place then but would have sought further advice before deciding what to do.

    Mr Michael Spencer QC and Ms Kristina Stern for the defendant; Mr Adrian Whitfield QC and Miss Jacqueline A Perry for Ms Chester.

    LORD HOPE said that it was not disputed that failure to warn could be said to have caused the injury if the claimant would never have undertaken the operation at all if the warning had been given. But she did not claim that.

    Damage was the gist of the action of negligence (see Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital ([1985] AC 871, 883H)), but damages could only be awarded if the loss sustained was within the scope of the duty to take care, and the causation issue could not be properly addressed without a clear understanding of that scope.

    English law measured the doctor’s duty of care when giving advice as to a proposed course of treatment by applying the standard of competent professional opinion: see Bolam v Friern Hospital Management Committee ([1957] 1 WLR 582) and Maynard v West Midlands Regional Health Authority ([1984] 1 WLR 634).

    Common to all the speeches in Sidaway was a recognition of the fundamental importance of the patient’s right to decide whether to accept or reject the treatment proposed by the doctor.

    The defendant owed a duty to the claimant to inform her of the risks inherent in the proposed surgery including that of paralysis so that she could make her own decision. That was the scope of the duty, the existence of which gave her a right to be informed before she would have given had she been told of those risks.

    The function of the law was to protect the patient’s right to choose. The fulfil that function it had to ensure that the duty to inform was respected by the doctor.

    It would fail to do that if an appropriate remedy could not be given if the duty was breached and the very risk the patient should have been told occurred and she suffered injury.

    A patient claiming to have suffered injury as the result of a doctor’s failure to inform her of the risk had to show that damage was caused by the breach of duty.

    But how could causation be established when the patient would not have refused absolutely ever to undergo the operation if told of the risks but would have postponed her decision until later?

    The problem was rendered all the more acute by the fact that the failure to warn had not in any way increased the risk of injury: that was inherent in the operation itself and was liable to occur at random irrespective of the degree of skill and care with which the operation was conducted.

    But the injury she sustained was within the scope of the defendant’s duty to warn. If she had been given the warning she would have avoided the risk, and the chances of her being injured in that way if she had had the operation later would have been very small.

    Having referred in particular to Chappel v Hart ((1998) 195 CLR 232) his Lordship accepted that a solution in the claimant’s favour could not be based on conventional causation principles.

    The “but for” test was easily satisfied as the trial judge had held that she would not have had the operation when she did if the warning had been given. But the risk was not created by the failure to warn.

    It was there already, as an inevitable risk of the operative procedure; it was not increased, nor the chances of avoiding it lessened, by what the defendant failed to say about it.

    His Lordship rejected an appeal to commonsense alone as providing a satisfactory answer. He preferred to approach the matter as raising an issue of legal policy which a judge had to decide: whether justice required the normal approach to causation to be modified.

    The law which imposed the doctor’s duty to warn had at its heart the patient’s right to make an informed choice as to whether and if so when and by whom to be operated on. Patients might have and were entitled to have different views about those matters.

    All sorts of factors might be at work: the patient’s hopes and fears and personal circumstances, the nature of the condition to be treated and, above all, the patient’s own views whether the risk was worth running for the benefits which might come if the operation was carried out.

    For some the choice might be easy: simply to agree to or to decline the operation. But for many it would be difficult, requiring time to think, to take advice and to weigh up the alternatives.

    The duty was owed as much to the patient who, if warned, would find the decision difficult as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately.

    To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it might be needed most.

    That would discriminate against those who could not honestly say that they would have declined the operation once and for all if they had been warned.

    The result would be unacceptable. The function of the law was to enable rights to be vindicated and to provide remedies when duties had been breached. Unless that was done the duty was a hollow one, stripped of all practical force and devoid of all content.

    On policy grounds therefore, the test of causation was satisfied and justice required that the claimant be afforded the remedy she sought, as the injury she suffered at that defendant’s hands was within the scope of the very risk which he should have warned her about when obtaining her consent to the operation which resulted in that injury.

    Lord Steyn and Lord Walker delivered concurring opinions: Lord Bingham and Lord Hoffman delivered dissenting opinions.

    House of Lords Published October 19, 2002

    Chester v Afshare
    Before Lord Bingham of Cornhill, Lord Steyn, Lord Hoffman, Lord Hope of Craighead and Lord Walker of Gestingthorpe.

    Speeches October 14, 2004.

    “The Times” October 2004