Chester (Respondent) v. Afshar (Appellant)
31. In my opinion this argument is about as logical as saying that if one had been told, on entering a casino, that the odds on No 7 coming up at roulette were only 1 in 37, one would have gone away and come back next week or gone to a different casino. The question is whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some irrelevant detail. The judge found as a fact that the risk would have been precisely the same whether it was done then or later or by that competent surgeon or by another.
32. It follows that the claimant failed to prove that the defendant's breach of duty caused her loss. On ordinary principles of tort law, the defendant is not liable. The remaining question is whether a special rule should be created by which doctors who fail to warn patients of risks should be made insurers against those risks.
33. The argument for such a rule is that it vindicates the patient's right to choose for herself. Even though the failure to warn did not cause the patient any damage, it was an affront to her personality and leaves her feeling aggrieved.
34. I can see that there might be a case for a modest solatium in such cases. But the risks which may eventuate will vary greatly in severity and I think there would be great difficulty in fixing a suitable figure. In any case, the cost of litigation over such cases would make the law of torts an unsuitable vehicle for distributing the modest compensation which might be payable.
35. Nor do I agree with Professor Honoré's moral argument for making the doctor an insurer, namely that his act caused the damage. That argument seems to me to prove both too much and too little. Too much, because it is an argument for making a doctor the insurer of any damage which he causes, whether the patient knew of the risk or not. Too little, because it would excuse the doctor in a case in which he had a duty to warn but the actual operation was perfectly properly performed by someone else, for example, by his registrar.
36. For these reasons and those given by my noble and learned friend Lord Bingham of Cornhill, I would allow the appeal and dismiss the action.
LORD HOPE OF CRAIGHEAD
37. The appellant, Mr Fari Afshar, is an eminent consultant neurosurgeon. He carries on his practice both under the National Health Service and privately. The respondent, Miss Carole Chester, was formerly a working journalist specialising in travel writing. On 18 November 1994 she attended a consultation with Mr Afshar as a private patient in his consulting rooms in Harley Street. She had suffered for several years from back pain and had been referred to him by another medical practitioner with a view to surgery. Three days later, on 21 November 1994, Mr Afshar conducted an operation on Miss Chester's back, with her consent. It resulted in significant nerve damage and left her partially paralysed.
38. Miss Chester's case that the operation was performed negligently was rejected by the trial judge (Judge Robert Taylor). He held that she had failed to establish that Mr Afshar was in any way negligent in his conduct of her surgery. But Miss Chester also claimed that Mr Afshar failed to advise her of the risks that were inherent in the operation and that this breach of duty too entitled her to damages. The trial judge found that the injury which she had sustained during surgery was caused by Mr Afshar's negligence in failing adequately to advise her of the risks of surgery and that on this ground she had established liability. The Court of Appeal (Hale LJ, Sir Christopher Slade and Sir Denis Henry) dismissed Mr Afshar's appeal against this finding by the trial judge:  EWCA Civ 724;  QB 356.
39. The issue of law of general public importance which has brought this case before your Lordships rests upon two findings of fact by the trial judge. The first is his finding that Miss Chester was not told pre-operatively of the risk of nerve damage possibly resulting in paralysis. Mr Afshar said that, while he could not remember verbatim what he said to her, he thought that he spent a good deal of time spelling out what the risks were. But the trial judge was satisfied that she was not given adequate or proper advice about the risk of nerve damage possibly resulting in paralysis and that, despite her requests for information about such risks, she was given to understand in effect that there were none. He found that in this respect Mr Afshar was negligent under the principle which was established in Bolam v Friern Hospital Management Committee  1 WLR 582. The second was his finding that, if she had known of the actual risks of the proposed surgery, Miss Chester would not have consented to the operation taking place on 21 November 1994 and that before deciding what to do she would have sought a second, or possibly, a third opinion.
40. The question of law which arises from these findings is whether it was sufficient for Miss Chester to prove that, if properly warned, she would not have consented to the operation which was in fact performed and which resulted in the injury, or whether it was necessary for her to prove also that she would never have had that operation. The issue is essentially one of causation. It is not disputed that the failure to warn could be said to have caused the injury if Miss Chester's position had been that she would never have undertaken the operation at all if that warning had been given. But, as the trial judge observed, it was one of the signs of her truthfulness that Miss Chester did not attempt to go that far, as she had never claimed that, if adequately advised of the risks, she would never at any time have consented to surgery. Can it then be said on these facts that the test for causation is satisfied?
41. Miss Chester had been referred to Mr Afshar by a consultant rheumatologist, Dr Wright. He had been treating her for back trouble since 1988. His approach had been to treat it conservatively. This treatment had included a series of injections, but the pain and backache were not permanently relieved by them. In 1992 she had a MRI scan of her lumbar spine. It showed that there was an element of congenital stenosis between L2 and L5 and that there were degenerative changes and some fairly marked instances of disc protusion in this area. In September 1994 she had a recurrence of her back trouble, following which she had a second MRI scan in October 1994. This showed that her condition had worsened since 1992. She now had a very substantial central-lateral variation at L2/3 and central canal stenosis at L3 and L4/L5. Dr Wright advised Miss Chester that in the light of this report the time had come for her to consider surgery. She told him that she wished to avoid this if at all possible, as she had a general aversion to surgery. He agreed to treat her condition once again by injection, but this effected no clear improvement. So he repeated his advice about surgery. He mentioned Mr Afshar as one of the surgeons to whom she might go for this.
42. Miss Chester said that she did not know when she went to see Mr Afshar on 18 November 1994 that only surgery was going to help her. She was looking for advice from him, not only about surgery but also as to whether any alternatives to surgery were possible. Dr Wright had mentioned in his letter of referral, at her request, that she was anxious to avoid surgery if possible, so there is no doubt that Mr Afshar was aware of this. He examined her for about 15 minutes and then spent about 30 minutes in conversation and discussion with her. He advised her that three intravertebral discs were the cause of her trouble and that they should be removed surgically.
43. There was a conflict of evidence as to the detail of their conversation. Mr Afshar said that he discussed with Miss Chester the outcomes of having surgery and not having surgery, that he showed her where the disc was and what it was doing to the nerve roots and why he recommended surgery. He said that he explained that there was a small risk of disturbance to the cauda equina nerve root which could mean sensory disturbance leading to reduction in power in her legs and alterations in touch, temperature and position sense. Cauda equina syndrome can lead, at one end of the spectrum, to minor disturbance of nerve roots or, at the other end, to paralysis. He said that he thought that he told her about these risks and the problems which she would experience if she did not have surgery.
44. Miss Chester's account, which was the version which the trial judge accepted, was that she told Mr Afshar that she had heard a lot of horror stories about surgery and that she wanted to know about the risks, but that none of this was explained to her. She did not mention paralysis specifically as one of the risks that she wanted to be told about, and this was not mentioned as a risk of surgery by Mr Asfar. The reply which she got from him, as a throw away line, was that he had not crippled anybody yet. She agreed to the surgery because he made it all sound so simple. She said if she had been told of the risks as she now knew them to be she would not have had the operation the next Monday. She would have spoken to various journalist friends as to who to go and see, would have spoken also to the BMA and would have wanted at least two further opinions as to whether an operation was necessary.
45. The operation to which Miss Chester gave her consent was carried out by Mr Afshar on Monday 21 November 1994. It involved a microdiscectomy at all three disc levels, and it lasted just under two hours. There was no complication during the operation. When it was over Mr Afshar was satisfied that his objectives had been fully met by the techniques which he used. But as soon as Miss Chester recovered consciousness it was found that she had suffered both motor and sensory impairment below the level of L2. After an hour she had developed some knee extension and flexion and sensation to pain. But there was no real improvement of limb function, so Mr Afshar arranged for an urgent MRI scan which suggested that there was still some compression at the L2/L3 level.
46. In the light of this finding Mr Afshar embarked on a second operation shortly after midnight on 22 November 1994. On this occasion he carried out a laminectomy. This meant that he was able to see the whole spinal canal. There was no sign of nerve root damage or of a break in the neural sac or of any fluid escaping. He was unable to find any explanation for Miss Chester's condition to his satisfaction. To make sure that nothing had escaped his attention a second post-operative scan was carried out. The only thing that was found was a small fragment which Mr Afshar did not think could have contributed to the profound change that had occurred. His conclusion was that the only explanation that could be given for it was one of cauda equina contusion during the routine medial retraction of the L3 root and cauda equinal dura during the L2/L3 disc removal during the first procedure. He told the trial judge at the end of his evidence that what happened to Miss Chester was a profound surprise to him and also a profound disappointment, as in all the years he had done neurosurgery he had never before or since had the same outcome.
47. Miss Chester made some progress after the operation. Within about two or three weeks her right leg function had returned virtually to normal. But progress on her left side was much slower. Six years later, when her case came to trial, she was still suffering from disability in a number of areas. The extent of her disability and its consequences have yet to be determined, as that part of the trial was adjourned by the trial judge pending resolution of the dispute on liability.
The duty to warn
48. It was not in dispute that cauda equina damage was a known risk of the surgery which was performed by Mr Afshar. Mr Afshar said that the risk of such damage was about 0.9%. Mr Findlay, who gave expert evidence for the defence, said that nerve root injury or injury to the cauda equina was a recognised risk of lumbar surgery and that operation at three levels carried a higher overall risk because there was a risk at each level. He explained that, while the likelihood of risk of damage was no greater when operating at L3 level than when operating lower down the spine, the magnitude of the damage could be increased if it was suffered at the upper level. "Most of us," he said, "would put a figure of 1 to 2% on the risk of nerve damage (including both single and multiple nerves) and other serious risks."
49. It was also common ground at the trial that it was Mr Afshar's duty, in accordance with good medical practice, to warn Miss Chester of the risk of damage involved in the surgery to which she was giving her consent and its possible consequences, including the risk of paralysis. The Court of Appeal was asked to give permission to appeal against the judge's factual findings on the issue as to whether she was told of these risks. But the court was of the opinion that the judge had given detailed and compelling reasons for preferring the claimant's account of her conversation with Mr Afshar. It held that there were no grounds that would justify interfering with his findings of fact:  QB 356, 368, para 18.
50. The trial judge explained his finding that Mr Afshar did not warn Miss Chester about the risks in this way in para 65 of his judgment:
51. The issue which is in dispute is now confined to the issue of causation. But the duty which, as is now accepted, was breached forms an essential part of the background to a discussion of that issue. Damage is the gist of the action of negligence, as Lord Scarman put it in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  AC 871, 883H. But damages can only be awarded if the loss which the claimant has sustained was within the scope of the duty to take care. And the issue of causation cannot be properly addressed without a clear understanding of the scope of that duty. So it is appropriate to reflect for a moment, before addressing the issue of causation, on the scope of the duty that was found to have been breached in this case and on the rationale for it that was established in Sidaway.
52. The question of principle that was decided in Sidaway was that English law measures the doctor's duty of care to his patient when he is giving advice with respect to a proposed course of treatment by applying the standard of competent professional opinion. The test which was described by McNair J in Bolam v Friern Hospital Management Committee  1 WLR 582, 586 and approved in Maynard v West Midlands Regional Health Authority  1 WLR 634, 638 by Lord Scarman, is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Bridge of Harwich described the background to the issue of law which was before the House in Sidaway, which was whether this test should be replaced by an objective one, in this way, at p 897D-F :
53. The decision that was mainly relied on in favour of an objective test which could be applied by the court independently of any medical opinion or practice was Canterbury v Spence (1972) 464 F 2d 772, in which Robinson J, delivering the judgment of the District of Columbia Circuit Court of Appeals, said, at p 784:
The logical force of this approach was recognised by the majority in Sidaway, but it was rejected in favour of the Bolam test. Lord Diplock said, at p 893H, that no convincing reason had been advanced which would justify treating the Bolam test as doing anything less than laying down a principle of English law that was comprehensive and applicable to every aspect of the duty of care owed by the doctor to his patient. As he put it, at p 895E-F, to decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that a warning might have, was as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient, and expert medical evidence on that matter should be treated in just the same way. Lord Bridge, with whose speech Lord Keith of Kinkel agreed, drew attention, at p 899E-F, to several reasons why the Canterbury doctrine was impractical in its application.
54. Common however to all the speeches in Sidaway was a recognition of the fundamental importance that must be attached to the right of the patient to decide whether he will accept or reject the treatment which is being proposed by the doctor. Lord Scarman, in his dissenting speech at p 882D, said that the patient's right to make his own decision might be seen as a basic human right protected by the common law. At p 897D-E, in the passage which I have already quoted, Lord Bridge recognised that a conscious adult patient of sound mind was entitled to decide for himself whether or not he would submit to a particular course of treatment. Later in his speech, at p 900F-G, he referred to what was necessary for an informed choice on the part of the patient and to the patient's right of decision. Lord Templeman said, at p 904A-B, that he did not subscribe to the theory that the patient is entitled to know everything. Some information might confuse and other information might alarm the patient. So it was for the doctor to decide in the light of his training and experience what needed to be said, and how it should be said. But he went on to add these words, at p 904D-E:
55. Thus the right to make the final decision and the duty of the doctor to inform the patient if the treatment may have special disadvantages or dangers go hand in hand. In this case there is no dispute that Mr Afshar owed a duty to Miss Chester to inform her of the risks that were inherent in the proposed surgery, including the risk of paralysis. The duty was owed to her so that she could make her own decision as to whether or not she should undergo the particular course of surgery which he was proposing to carry out. That was the scope of the duty, the existence of which gave effect to her right to be informed before she consented to it. It was unaffected in its scope by the response which Miss Chester would have given had she been told of these risks.
56. There were three possibilities. She might have agreed to go ahead with the operation despite the risks. Or she might have decided then and there not to have the operation then or at any time in the future. Or she might have decided not to have the operation then but to think the matter over and take further advice, leaving the possibility of having the operation open for the time being. The choice between these alternatives was for her to take, and for her alone. The function of the law is to protect the patient's right to choose. If it is to fulfil that function it must ensure that the duty to inform is respected by the doctor. It will fail to do this if an appropriate remedy cannot be given if the duty is breached and the very risk that the patient should have been told about occurs and she suffers injury.
57. In his article 'Informed Consent and Other Fairy Stories' (1999) 7 Med LRev 103 Professor Michael A Jones drew attention to the problems which had been focussed in the debate about informed consent that followed the decision of this House in Sidaway to prefer what he described, at p 104, as the reasonable doctor standard (the Bolam test) in contrast to the prudent patient standard adopted in the American cases, which has been accepted also in Canada. Liability for the non-disclosure of risks is judged by reference to the tort of negligence which looks to the nature of the doctor's duty and applies the Bolam test to it, rather than the validity of the consent of the patient to what would otherwise be a trespass. There are then two problems that face a patient who brings a claim for non-disclosure of risk: that of proving breach of duty and that of proving causation. The greater the difficulties that stand in the way of the patient on these issues, the more difficult it is to say that the law of informed consent works as a means of protecting patient autonomy.
58. Commenting on a perceived imbalance of power in the doctor-patient relationship, Professor Jones said, at p 129:
At p 133 he observed that the law cannot play a direct role in setting out detailed rules by way of guidance to doctors, but that it can have a powerful symbolic and galvanising role and that this is its major strength. The message that he was seeking to convey was that, while the case law provided little guidance to doctors and even less comfort to patients, litigation on informed consent could provide a stimulus to the broader debate about the nature of the doctor-patient relationship. The "happy ending" of his title would be found if the iterative process between case law and professional guidance were to lead to the creation of a more substantive "right" to truly informed consent for patients.
59. That is the background to the problem of causation that has been posed in this case. The scope of the duty brings within its ambit all the consequences of the risks that the patient ought to be informed about. It is unaffected by the response which the patient may give on being told of these risks.
60. It is not in doubt that a patient who claims that she has suffered injury as the result of a doctor's failure to inform her of the risk of injury must show that the damage was caused by the doctor's breach of duty. In this respect the present action is no different from any action that is brought in negligence. But how can causation be established when, as in this case, the patient would not have refused absolutely there and then and for ever to undergo the operation if told of the risks but would have postponed her decision until later?
61. The problem is rendered all the more acute in this case by the fact that the failure to warn cannot be said in any way to have increased the risk of injury. The risk was inherent in the operation itself. It was described by Miss Chester's expert witness, Mr Firth, as "the terror of neurosurgery." The evidence indicated that it was also liable to occur at random, irrespective of the degree of care and skill with which the operation was conducted by the surgeon. This means that the risk would have been the same whenever and at whoever's hands she had the operation. It can be said that Miss Chester would not have suffered her injury "but for" Mr Afshar's failure to warn her of the risks, as she would have declined to be operated on by him on 21 November 1994. But it is difficult to say that his failure was the effective cause of the injury.
62. On the other hand, there is no doubt that the injury which Miss Chester sustained when she was operated on by Mr Afshar was within the scope of his duty to warn. It was his duty to warn her of the risks of the operation that he was proposing to perform, and it was in the course of that same operation that she sustained the very kind of injury that he ought to have warned her about. If she had been given the warning she would have avoided that risk, and the chances of her being injured in that way if she had had the operation later would have been very small - between 1 and 2% on Mr Findlay's evidence.
63. None of the four cases in which claims for a failure to warn have come before the courts in this country, all of which were decided at first instance, raised the issue of causation in this form. In Smith v Barking, Havering and Brentwood Health Authority  5 Med LR 285 Hutchison J found on the balance of probabilities that the claimant would have consented to the operation even if she had been properly advised about the risk of tetraplegia. The consequence of this decision was that the lack of a warning could not have caused the injury, as she would have gone ahead with the operation anyway. In Smith v Salford Health Authority [1994 ] 5 Med LR 321 Potter J decided the case against the doctor on other grounds. But he would not have found him liable for a failure to warn, because he was not satisfied that the claimant would not have had the operation if he had been properly advised. In McAllister v Lewisham and North Southwark Health Authority  5 Med LR 343, on the other hand, Rougier J was confident that the claimant would not have had the operation if she had been properly warned and that on balance of probabilities she would have continued to decline it. So he held that the necessary causal connection was established in her case. And in Smith v Tunbridge Wells Health Authority  5 Med LR 334 the claim succeeded because Morland J was satisfied that the claimant would have declined the operation if he had been properly advised of the risk of impotence and bladder malfunction from rectal surgery.