A surgeon's failure to warn a patient about the risks of an operation provides plenty of food for thought in the field of negligence, writes Edward Levey


For anyone practising in the field of professional negligence or, for that matter, for anyone who might one day find themselves on the wrong end of a professional negligence action, the recent decision of the House of Lords in Chester v Afshar [2004] UKHL 41 deserves close attention.



Ms Chester underwent a back operation. However expertly the operation was performed, there was an inherent risk involved, namely a 1% to 2% chance of a partial paralysis. Negligently, the surgeon did not warn the patient during the consultation about this risk. The operation was carried out a few days later. Although the operation was carried out competently, the risk eventuated and Ms Chester suffered paralysis.


Ms Chester sued the surgeon for his negligence in failing to advise her of the inherent, albeit very low, risk involved in the operation. Crucially, it was not part of her case that she would not have undergone the operation if she had been duly warned. Instead, her case was that she would not have undergone surgery on that particular day; she said that, had she been warned, she would have taken a second (and, possibly, a third) opinion first.


It was not argued that the operation itself had been performed negligently. The failure to warn could not be said in any way to have increased the risk of injury. The risk was inherent in the operation and the risk would have been the same whenever and at whoever's hands she had it. Thus the question arose whether Ms Chester should be entitled to recover for her injuries. Had the failure to warn her about the risks caused her loss? By a majority of 3 to 2 the House of Lords decided she could recover.


The majority's view was that the surgeon had indeed caused the loss, because if the surgeon had given proper advice, the operation would not have taken place on that particular day, but rather on a different day and (quite possibly) at the hands of a different surgeon. In short, history would not have been exactly the same and the operation would not have taken place as and when it did. Accordingly, the majority found that the surgeon's negligence had caused the loss.


Lord Hoffmann and Lord Bingham viewed things somewhat differently. In response to the argument that it was sufficient that Ms Chester would not have had the operation on that particular day (even though the risk would have been the same if she had it at another time), Lord Hoffmann said: '... 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.'


It is possible to summarise the contrast in views. The majority took the view that there was something wrong with the law if the surgeon could owe a duty of care, which he breached, and an injury was suffered which lay within the scope of the duty, yet the patient was left without a remedy. The minority said this approach represented a departure from sound and established legal principle. A defendant is bound to compensate the claimant for the damage his negligence has caused, and only for such damage. A patient's right to be appropriately warned is important, but should not be reinforced by providing for the payment of potentially large damages by a defendant whose violation of that right is not shown to have worsened the physical condition of the claimant.


It is easy to understand why Ms Chester felt deeply aggrieved by the surgeon's failure to warn her of the risks. It is also easy to see why the court would wish to find a way of ensuring that Ms Chester was not left without a remedy.


In my view, damages should have been awarded to Ms Chester for her distress at the surgeon's failure to warn. That distress, unlike the paralysis, was directly caused by the negligence of the surgeon. In that way, her right (to be warned) would have been vindicated, the duty to warn would have been reinforced, but damages proportionate to the wrong would have been awarded.



Lord Hoffmann rejected this approach because he thought it would be too difficult to fix the level of compensation and because the cost of litigation in respect of such modest sums would be too great. However, in recent years the House of Lords has endorsed the principle that damages can and should be awarded for disappointment or distress in appropriate cases (see for example, Ruxley Electronics and Construction v Forsyth [1996] AC 344 and Farley v Skinner [2001] UKHL 49). If such damages can be awarded to someone whose swimming pool is not deep enough (Ruxley) or someone who is troubled by aircraft noise that his surveyor should have told him about (Farley), there is no reason why they should not be awarded to someone in Ms Chester's far more distressing circumstances.



Admittedly, this was a medical negligence case and much of the reasoning focuses on the medical aspects of the case; in particular, the requirement that a patient gives fully informed consent before undergoing treatment. A very recent decision of the court of Appeal (White v PDT [2004] EWCA Civ 1511) strongly suggests that the reasoning in Chester is limited to medical negligence cases. The obvious difficulty with that approach, however, is that none of the majority in the House of Lords said as much in their speeches. Furthermore, it is by no means clear how the reasoning in Chester could have assisted on the facts of White in any event. By contrast, consider the following hypothetical situation where it is difficult to see why the reasoning in Chester should not apply.



Suppose a client consults a solicitor in relation to an injunction. The lawyer advises him (correctly) that he has a strong case. Unfortunately, the solicitor (negligently) fails to warn the client that, ultimately, the court has a discretion whether or not to grant the injunction, and that one judge in every 100 might - if you are really unlucky - reject the case. The client applies for the injunction and happens to come before an ill-tempered and irascible judge who, unexpectedly, refuses to grant the injunction. Can the client sue the solicitor in negligence for failing to warn him of the risks in order to recover his wasted legal costs?



Suppose the client can prove that, had the solicitor warned him of the (remote) chance of losing, he would have sought a second opinion from a different solicitor. Even though he ultimately would have gone ahead with the application, chances are that he would not have had the unfortunate experience of coming before that particular judge on that particular day and he would successfully have obtained his injunction. Until Chester, I doubt whether anyone would have suggested that the solicitor in that example had caused the client any loss. But perhaps times are changing.



Edward Levey is a barrister at Fountain Court Chambers in London specialising in professional negligence actions