A surgeon’s duty to warn of surgery risks – Causation – a worrying development for defendants The recent House of Lords decision in Chester v Afshar (handed down on 14th October 2004) has set alarm bells ringing for defendants and their insurers alike. The Claimant had experienced back problems for a number of years and had tried a number of conservative treatments, all without success. She consulted the Defendant, an eminent neurosurgeon, and underwent micro-discectomy surgery within a matter of days of the consultation. There was a random 1-2% risk of her sustaining neurological damage associated with the surgery, which, the Claimant contended, the surgeon failed to warn her of. Neurological damage did occur leaving her partially disabled. She had been unable to pursue her career as a travel journalist since the operation.

At the trial, it was found as a fact that no warning about surgery risks was given by the Defendant. However, he had not created or increased the random risk of the Claimant sustaining neurological damage by his failure to warn and neither had he been negligent in his performance of the operation. Furthermore, the Claimant could not say that, even if she had been properly warned of the risks, she would not have had the surgery at some time in the future.

Her evidence was that she would simply have not gone ahead with the operation when she did. Accordingly, the issue which lay at the heart of the case was this: could the Defendant be held responsible, as a matter of causation, for the full extent of the Claimant’s injury when she would, in all probability, have had the surgery at some point in the future and been exposed to the self-same risk? It was common ground that although the circumstances in which the surgery would have been performed at a later date might not have been identical to the fateful operation, the risk of serious consequences effectively remained unaltered. The House of Lords, by a majority of 3 to 2, upheld the decision of the Court of Appeal (and the Trial Judge) and allowed the Claimant’s appeal.

In giving the leading speech, Lord Hope referred to the fundamental principle of patient choice and the absolute of a patient to decide whether he or she will accept or reject the proposed treatment, a well-established and uncontroversial proposition of law. In view of the initial finding of fact in favour of the Claimant over the Defendant’s failure to warn her, the establishment of a breach of duty on his part was, not surprisingly, a relatively straightforward task. However, proving a causal link between the failure to warn and the injury that she suffered gave rise to much more contentious argument. The Defendant relied on the minority judgments in the case of Chappel v Hart and argued that if, as the evidence showed, the Claimant would simply have postponed the operation even if she had been armed with a proper warning about the surgical risks, she would have faced an identical risk (and outcome) at some point in the future.

In other words, the injury would have happened anyway and the fact that it occurred when it did was purely a coincidence. Lord Hoffman, who was in the minority (together with Lord Bingham), used a roulette-wheel analogy in support of his rejection of the Claimant’s appeal, although this line of reasoning has been criticised on the ground that the odds are stacked against the roulette player (37 to 1 with each spin), whereas the Claimant had a 98 to 99% chance of having a successful outcome following the operation. It was perhaps not the most apposite analogy to use, but the correct underlying sentiment.

Lord Hoffman may also have been concerned at further extending the frontiers of causation than he had already done in Fairchild v Glenhaven Funeral Services Limited. Lord Hope recognised that the time-honoured ‘but-for’ test was easily satisfied (i.e.’but-for’ the surgery the Claimant would not have sustained the injury she did), but that the risk of which the Claimant should have been warned was not created by the failure to warn. That risk was already present, as an inherent risk of the operative procedure itself, however skilfully and carefully it was carried out. Lord Hope determined that commonsense solutions were not appropriate and it was at this juncture that he, together with Lords Styen and Walker, relied upon ‘policy’ grounds in order to do justice to the Claimant in what he described as “the unusual circumstances of this case”: “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 content.

It will have lost its ability to protect the patient and thus 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.”

Critics of the judgment will no doubt strenuously argue that such a laudable, but extremely broad, jurisprudential objective has no application to a very specific issue of causation. The Claimant’s case ought to have foundered on her candid admission that she would probably have had the surgery in any event, albeit not at the time when she did. To that extent, the case was unusual and fact-specific. It seems reasonable to assume that the majority of patients placed in a similar position to the Claimant in Chester would, with the benefit of perfect hindsight, have said that they would never have undergone surgery, at any time, had they known of the risks involved. In those cases, the causation conundrum confronting the House of Lords in Chester would simply fall away. Nevertheless, a precedent has now been set and it is almost inevitable that in those cases where a deserving claimant is left without a remedy due to his or her inability to establish causation between a breach of duty and the injury suffered, lawyers will resort to the House of Lords decision in Chester in an attempt to plug the evidential gap. Even those who welcome the eventual outcome of the case would probably have to concede that it is the right decision for, at least partially, the wrong reasons.