Sustaining serious nerve root damage

The decision in Chester v Afshar 2004 UKHL 41 can be interpreted to mean both that a claimant can ignore the traditional rules of causation in a clinical negligence case and that the Bolam test (Bolam v Friern HMC 1957 2 All ER 582) is no longer relevant in determining what a patient should be told regarding the risks of medical treatment. Consider the accuracy of this statement. Chester v Afshar (1) has influenced two main issues in medical law and those are; the departure from the traditional rules of causation and the extent of disclosure of information prior to obtaining a patient's consent for treatment.

I will consider both of these points in turn. First I need to consider the traditional rules of causation before moving on to an analysis of Chester v Afshar in this area. I will discuss causation in relation to disclosure of information and risks because this is what Chester v Afshar concerns. The only duty in medical negligence is the duty to care for the patient and this is divided into distinct parts, one of which is the duty to provide information.

If a claimant contends that he was not warned about a risk in a procedure he will need to prove that the risk should have been disclosed, therefore confirming the defendant has breached her duty to provide information. He would then need to confirm that, had that risk been disclosed, he would not have consented to the treatment proposed. The claimant must prove on a balance of probabilities that the defendant's breach of duty caused his injuries and this is notoriously difficult in cases of disclosure of risk (2).

In cases involving disclosure of risks it is accepted that the "but for" test of factual causation must be applied. This means that the claimant should be able to say 'but for' the defendants negligence, the injury would not have occurred, therefore establishing a direct causal connection. The claimant would need to show had she been made aware of the risk she would not have consented to the procedure (3). If the patient may have gone ahead and had the treatment anyway then it was said causation was not established (4).

The courts may assume that even if the risks had been adequately disclosed then the claimant would still have had the treatment. Due to the difficulties in trying to deduce what the claimant might have done had the information been disclosed, the English courts apply a subjective test to cases like this, and ask would this particular claimant have acted in this way? Inexorably this means relying on the claimant's evidence (5). The difficulty with relying on the claimant's evidence is that it would be impossible to determine what action she would have taken had the correct advice been given.

In Chester v Afshar the claimant alleged that the defendant (a neurosurgeon) had been negligent in his advice prior to the lumbar surgery he had arranged and performed. The claimant had suffered recurring, serious, back pain and had been referred to the defendant who had advised her that three intra-vertebral discs should be removed from her back. The claimant had suffered motor and sensory impairment as a result of that surgery (6). The trial judge found in her favour, that the defendant had been negligent in failing to advise her of the 1-2% foreseeable risk of sustaining serious nerve root damage (7).

The trial judge concluded that the defendant had not been negligent during the operation itself but accepted the claimant's statement, that if she had been properly advised as to the risks involved, she would not have consented to the operation taking place on the day it had. She maintained that she would have wanted to explore alternative options and get a second or third opinion, but at no point did she stipulate she would never have consented to the operation at all. Regardless of this it was more probable that the consultant she saw would have met her concerns (and aversion to surgery) by suggestions of alternatives options.

The trial judge concluded that it was sufficient to establish that if an adequate warning had been given, the operation in question would not have taken place and therefore the consequential damage would not have occurred. The defendant appealed, stating the fact of the claimant being unable to say whether she would have went ahead with the operation at some point in the future, as not satisfying traditional legal principles on causation (they also appealed on the point of disputed fact).

The defence contended that the claimant needed to prove she would not have had the operation at any time. The Court of Appeal relied on the majority view in the Australian case of Chappel v Hart (8). where it was held that, even though the patient would have needed to have the operation at some point, it could not be said that she would probably have suffered the same injury, as the situation would have been different and the risk not necessarily identical.

The Court of Appeal affirmed the earlier decision and held that in order to establish a causal link between the defendant's failure to warn of the risk, and the damage suffered, it was sufficient to prove that, had she been properly advised, she would not have consented to undergo that operation on that day (the mere possibility that the claimant could not discount that she would never have had the operation, was irrelevant). The defendant's negligence in failing to give an adequate warning had lead to the claimant being operated on at that place and time (9).

Therefore the 'but for' test was still satisfied, although on non-conventional grounds. The purpose of the duty to provide information is to allow the patient to make an informed choice (whether or not to have the proposed operation, at which time and place, and in whose hands the operation should be performed). By failing to give adequate advice, the neurosurgeon had taken away the patient's choice, so the risk that then followed could be said in legal terms, to be caused by a breach of the duty to warn.

Although the Court of Appeal held that whether the claimant would have had the operation later was not relevant to establish causation it would be relevant to the issue of quantum of damages (8). Therefore the defendant could argue that the claimant could have suffered the same damage when having the same operation at a later date and this may account for a reduction in damages. The full consequences of Chester v Afshar on the traditional rules of causation is yet to be seen.

The majority in Chester decided that the duty of care to warn is so important, that justice demanded a "narrow and modest departure from traditional causation principles" (10) and felt that it was fair in the circumstances that the claimant was allowed a remedy (11). The decision acknowledges a right to be informed of serious or significant risks prior to treatment and causative responsibility may now lie where a practitioner fails to disclose a significant risk, and consequentially that risk materialises.

The difficulty may lie in establishing what kind of risks are serious or significant enough to be departed to the patient. After Chester v Afshar, to establish causation the claimant will need to prove that he would at the very least have postponed the treatment, had he been adequately warned. Does the decision in Chester mean that the judges are prepared to relax the traditional connection between the breach of duty and causation of injury?

Possibly not if Gregg v Scott is to be followed (12), it seems the rules will only relax in the most exceptional of circumstances as it appears that Chester v Afshar was decided on its own particular facts and therefore it has not introduced a new principle of general application. In Gregg v Scott, Dr Scott negligently diagnosed a lump found under Mr Gregg's arm as benign when it was in fact cancerous. Consequently, the necessary treatment was delayed for about nine months and this delay decreased Mr Gregg's chances of survival for 10 years from 42% to 25%.

Mr Gregg's claim failed, at first instance and in the Court of Appeal (13). All judges were in agreement that the case was further complicated by the outcome for Mr Gregg being unknown (statistical evidence is no substitute for actual facts). However Baroness Hale did accept that, "[w]ell settled principles may be developed or modified to meet new situations and new problems" (14), but on dismissing the appeal said, "But damage is the gist of negligence. So it can never be enough to show that the defendant has been negligent.

The question is still whether his negligence has caused actionable damage". It was held that to decide the case otherwise would be such a radical change with possible sweeping consequences that it would have to come from Parliament. Therefore it appears that Chester v Afshar has dented the previously rigid rules on causation but it does not have the effect of allowing the claimant to disregard them. However, the fact that it was a majority decision goes some way to show that there is an increasing willingness on the part of some judges to develop the law in this area.

Therefore, in the most exceptional of circumstances where disclosure of risk is an issue, there will remain the possibility of following Chester by departing from the traditional principles of causation in order to uphold the individual's autonomy. However the courts will not be able to use policy considerations to avoid causation problems in all its contexts. There is now an uncertainty as to the future of causation principles and it may be that another case will justify public policy being invoked to find causation when previously there would be no such finding.

The second part of the question concerns the application of Bolam, and Chester v Afshar's effect on its relevance today in determining what a patient must be told regarding medical risks. The first point to consider is the Bolam test itself. Once the claimant has established the defendant owes him a duty of care (which is implicit in the doctor – patient relationship) the onus is on the claimant to show that the defendant fell below the standard expected of him.

The basic standard is of the reasonable man in the circumstances of the defendant, but the standard of a medical practitioner is that established in Bolam v Friern Hospital Management Committee (15). The Bolam test is "the standard of the ordinary skilled man exercising and professing to have that special skill". A man need not possess the "highest expert skill" it is sufficient if he exercises the ordinary level of competence of an ordinary man in that profession, practising that particular speciality (16).