Surgeon found liable for not warning of partial paralysis risk
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《英国医生杂志》
Britain抯 highest court, the House of Lords, made new law last week when it took the rare step of departing from long established legal principles to hold a consultant neurosurgeon liable for a patient抯 paralysis even though on normal principles his negligent failure to warn her of the risk had not caused her injury.
English law has long required anyone suing for compensation for personal injury to prove not only that the person sued was negligent but that the negligence caused the damage.
But by a 3 to 2 majority the law lords ruled that surgeon Fari Afshar must compensate a travel journalist, Carole Chester, for negligently failing to warn her of a 1-2% unavoidable risk of partial paralysis, even though she would not have declined surgery had she known of the risk.
The judge who originally heard the case in the High Court accepted Ms Chester抯 claim that, had she been warned, she would have gone away and sought a second or even third opinion and would not have had the operation on that occasion.
Had she decided to have it later, the risk of developing cauda equina syndrome, as she did, would have been just as small and therefore it was unlikely it would have happened, the judge said. The surgeon抯 failure to warn therefore caused her injury.
Mr Afshar performed the operation in 1994, three days after he was consulted by Ms Chester, who had experienced years of back pain.
The judge who originally heard the case in the High Court ruled that the operation had not been performed negligently but that the surgeon was liable for a negligent failure to warn. The ruling was upheld by the Court of Appeal.
Last week the House of Lords rejected the doctor抯 appeal; Lords Bingham and Hoffmann dissented.
Lord Bingham, the senior law lord, said in his view the law should not seek to reinforce the patient抯 right to know "by providing for the payment of potentially very large damages by a defendant whose violation of that right is not shown to have worsened the physical condition of the claimant."
He added that the timing of the operation was irrelevant as "the injury would have been as liable to occur whenever the surgery was performed and whoever performed it."
Lord Hoffmann said: "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 number 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."
In 2002 in a case involving a worker exposed to asbestos by two employers, where it could not be proved which one had caused his illness, the law lords departed for the first time from the normal principle that a claimant must prove that the person sued caused the injury. They allowed him to claim damages from both employers.
Lord Steyn said that case had shown that "where justice and policy demand it, a modification of causation principles is not beyond the wit of a modern court."
He said a ruling in favour of Ms Chester was "in accord with one of the most basic aspirations of the law, namely to right wrongs." Moreover, the ruling reflected "the reasonable expectations of the public in contemporary society" and was a "narrow and modest departure from traditional causation principles."
Lord Hope said: "On policy grounds I would hold that the test of causation is satisfied in this case." Lord Walker agreed.
Ms Chester is claiming ?00 000 ($0.9m; �0.7m) damages, although the rulings so far have focused only on liability, and the amount of her compensation still has to be determined.(BMJ Clare Dyer legal corr)
English law has long required anyone suing for compensation for personal injury to prove not only that the person sued was negligent but that the negligence caused the damage.
But by a 3 to 2 majority the law lords ruled that surgeon Fari Afshar must compensate a travel journalist, Carole Chester, for negligently failing to warn her of a 1-2% unavoidable risk of partial paralysis, even though she would not have declined surgery had she known of the risk.
The judge who originally heard the case in the High Court accepted Ms Chester抯 claim that, had she been warned, she would have gone away and sought a second or even third opinion and would not have had the operation on that occasion.
Had she decided to have it later, the risk of developing cauda equina syndrome, as she did, would have been just as small and therefore it was unlikely it would have happened, the judge said. The surgeon抯 failure to warn therefore caused her injury.
Mr Afshar performed the operation in 1994, three days after he was consulted by Ms Chester, who had experienced years of back pain.
The judge who originally heard the case in the High Court ruled that the operation had not been performed negligently but that the surgeon was liable for a negligent failure to warn. The ruling was upheld by the Court of Appeal.
Last week the House of Lords rejected the doctor抯 appeal; Lords Bingham and Hoffmann dissented.
Lord Bingham, the senior law lord, said in his view the law should not seek to reinforce the patient抯 right to know "by providing for the payment of potentially very large damages by a defendant whose violation of that right is not shown to have worsened the physical condition of the claimant."
He added that the timing of the operation was irrelevant as "the injury would have been as liable to occur whenever the surgery was performed and whoever performed it."
Lord Hoffmann said: "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 number 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."
In 2002 in a case involving a worker exposed to asbestos by two employers, where it could not be proved which one had caused his illness, the law lords departed for the first time from the normal principle that a claimant must prove that the person sued caused the injury. They allowed him to claim damages from both employers.
Lord Steyn said that case had shown that "where justice and policy demand it, a modification of causation principles is not beyond the wit of a modern court."
He said a ruling in favour of Ms Chester was "in accord with one of the most basic aspirations of the law, namely to right wrongs." Moreover, the ruling reflected "the reasonable expectations of the public in contemporary society" and was a "narrow and modest departure from traditional causation principles."
Lord Hope said: "On policy grounds I would hold that the test of causation is satisfied in this case." Lord Walker agreed.
Ms Chester is claiming ?00 000 ($0.9m; �0.7m) damages, although the rulings so far have focused only on liability, and the amount of her compensation still has to be determined.(BMJ Clare Dyer legal corr)