Chester v. Afshar

The central question in this appeal is whether the conventional approach to causation in negligence actions should be varied where the claim is based on a doctor's negligent failure to warn a patient of a small but unavoidable risk of surgery when, following surgery performed with due care and skill, such risk eventuates but it is not shown that, if duly warned, the patient would not have undergone surgery with the same small but unavoidable risk of mishap. Is it relevant to the outcome of the claim to decide whether, duly warned, the patient probably would or probably would not have consented to undergo the surgery in question?

I am indebted to my noble and learned friend Lord Hope of Craighead for his detailed account of the facts and the history of these proceedings, which I need not repeat.

For some six years beginning in 1988 the claimant, Miss Chester, suffered repeated episodes of low back pain. She was conservatively treated by Dr Wright, a consultant rheumatologist, who administered epidural and sclerosant injections. An MRI scan in 1992 showed evidence of disc protrusions. In 1994, on the eve of a professional trip abroad, Miss Chester suffered another episode of pain and disability: she could "hardly walk", and had reduced control of her bladder. Dr Wright gave another epidural injection, and Miss Chester was able to make the trip, using a wheelchair at Heathrow. But after the trip the pain returned. A further MRI scan revealed marked protrusion of discs into the spinal canal. After further conservative treatment which proved ineffective, Dr Wright referred Miss Chester to Mr Afshar, a distinguished consultant neurosurgeon with much experience of disc surgery, although Miss Chester was understandably reluctant to undergo surgery if this could be avoided.

On accepting Miss Chester as a patient, Mr Afshar became subject to a legal as well as a professional duty to exercise reasonable care and skill in examining her; in assessing her case; and in advising on the need for surgery to alleviate her condition. If surgery was advised and accepted, he was bound to exercise reasonable care and skill in operating and in supervising her post-operatively. Mr Afshar did examine Miss Chester, did advise and did undertake surgery. All these duties Mr Afshar duly performed. Miss Chester contended at trial that Mr Afshar had performed the operation negligently, but the judge rejected this complaint and in the event the Court of Appeal was not asked to rule on that question.

Mr Afshar was however subject to a further, important, duty: to warn Miss Chester of a small (1%-2%) but unavoidable risk that the proposed operation, however expertly performed, might lead to a seriously adverse result, known in medical parlance as cauda equina syndrome. The existence of such a duty is not in doubt. Nor is its rationale: to enable adult patients of sound mind to make for themselves decisions intimately affecting their own lives and bodies. There was a conflict of evidence at trial on what was…

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