Surgeon liable for not warning of risk

Law Lords uphold medical negligence claim despite causation doubt

News, 18 October 2004

The House of Lords by a narrow margin has upheld a patient's claim for damages where her surgeon failed to advise her of a small risk of adverse consequences from an operation, and these consequences occurred without negligence by the surgeon - even though it was not shown that with the warning, the patient would have declined to go ahead with the operation. The decision, which turned on how to interpret the requirement of causation, will be regarded as authoritative in Scotland.

By a 3-2 majority the House upheld the Court of Appeal's decision to uphold an award to Carole Chester, who sued her consultant neurosurgeon, Fari Afshar, for nerve damage suffered in an operation to her back which left her partially paralysed. The trial judge had found that, if warned of the risk, Miss Chester would have sought at least a second opinion and not gone ahead with the operation when she did; but that she would have gone ahead in due course.

The minority judges, Lords Bingham and Hoffmann, objected that as a matter of causation the law should not award damages where the violation of the claimant's right to be informed was not shown to have worsened her physical condition. But Lord Hope, one of the Scottish Law Lords, supported by Lords Steyn and Walker, considered that that approach would render the duty to inform "useless in the cases where it may be needed most".

"I would find that result unacceptable", he continued. "The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case."

The full judgments can be read at http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd041014/cheste-1.htm.