Case Brief - Chester v Afshar

Miss Chester, the plaintiff, suffered from low back pain since 1988. During 1994, Miss Chester was referred to Mr. Afshar, a neurosurgeon, who happens to be the defendant. The defendant advised the plaintiff to undergo an elective lumbar surgical procedure, which is a surgical procedure on her spine. However, there was a 1% - 2% chance that the surgical procedure could lead to serious neurological damage. The defendant failed to inform the plaintiff about the risk, although this risk was clearly recognized by neurosurgeons. After performing the surgical procedure, the plaintiff suffered from serious neurological damage.

3) Issue presented Factual issues: Would the injury have occurred if Mr. Afshar had informed Miss Chester about the risks involved? Legal issues: What is the relevant question of causation? Should normal principles of causation be departed for reasons of justice? Plaintiff’s argument: It is the duty of the surgeon to inform the patient about any risks associated with the surgical procedure. Failure to perform as such would result in the surgeon being liable if the inherit risk materialized. Defendant’s argument: The surgical procedure was conducted in the most professional manner, as the surgeon did not perform carelessly.

Thus, the surgeon did not increase the risk and should not be held liable. 4) Decision/ Result It was a split decision, 3:2 (Lord Bingham & Lord Hoffman dissenting). The appeal was dismiss, thus the court was in favor of the plaintiff. 5) Reasoning/ Rationale During the original trial, the judge found that the plaintiff would have not undergone the surgical procedure so soon, if she had knew about the risk. Moreover, she would have requested for second opinion on whether the surgical procedure was necessary. On the balance of probability, if she had the operation on another occasion it may have been successful.

As the court was in favor of the plaintiff, the defendant appealed to the Court of Appeal. The court of appeal used the normal causal principles to resolve the case. The court recognized that the ‘but for’ test was satisfied. The court also recognized that the damage fell within the scope of the duty that was breached, so that the breach could be said to have caused the damage. It was held that the plaintiff would not have consented to the operation which was in fact performed upon her and would at the very least have postponed the decision. The appeal was dismissed.

The defendant once again appealed to the House of Lords. In the House of Lords, the fact that since the defendant had not increased the risk of the injury raised a problem of causation. Lord Bingham and Lord Hoffman issued dissenting judgments on this case. Lord Bingham: The plaintiff’s injury did not satisfy the ‘but for’ test The plaintiff has not established that but for the failure to warn she would not have undergone surgery The timing of the operation is irrelevant to the injury she suffered The injury would have been as liable to occur whenever the surgery was performed and whoever performed it Lord Hoffman:

The failure to warn has not caused the damage The judge made no finding that she would not have had the operation The plaintiff failed to prove that defendant’s breach of duty caused her loss However, the majority of the judges found the defendant liable instead. They believed that the ‘but for’ test was satisfied. Lord Hope: The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached ‘But for’ test is satisfied Lord Walker:

Took a more flexible approach Such a plaintiff ought not to be without a remedy, even if it involves some extension of existing principle Lord Steyn: A surgeon owes a legal duty to a patient to warn him or her in general terms of possible serious risks involved in the procedure A patient’s rights to an appropriate warning is an important right It is necessary to identity precisely the protected legal interests at stake Surgeon’s negligence to warn the plaintiff led to the actual injury.

6) Own opinion The decision to dismiss the appeal was a good decision. Although it was not the direct act of the defendant which caused the injury, but in such exceptional cases, the traditional causation principals must be set aside. A policy decision was made over a legal decision which allowed justice to be prevailed. (789 words).