MORE ON EVIDENCE AND CAUSATION: A CLINICAL NEGLIGENCE CASE

The previous post dealt with issues of evidence and causation. Similar issues can be seen in the case of Irene Packham -v- Anita Hazari [2014] EWHC 3951 (QB), a decision of Michael Harvey Q.C.  The issue of causation and evidence was considered in the context of medical negligence.

THE ISSUES

The claimant brought a claim against a plastic surgeon alleging negligence in failing to give her proper information about the scarring that would be left behind after a “tummy tuck” operation. The operation had left a 7cm scar.  It was agreed that the operation had been carried out skilfully and with proper care. The issues related to consent.

THE JUDGE FOUND THAT THERE WAS NO NEGLIGENCE

The judge found that the defendant was not negligent.  However there were interesting observations in relation to causation and evidence.

OBSERVATIONS AS TO CAUSATION AND EVIDENCE

The judge found that even if he had found the defendant had been negligent the claimant would have failed on causation.

  • Her case was that, had she been told that there would be 7cm scar she would not have had the operation.
  • However the court received no evidence as to what the claimant would do if she was told the length could vary.
  • The court must “disregard the benefit of hindsight”.
  •  The judge found  that the claimant would have proceeded in any event.
  • The judge rejected an argument that the principles in Chester -v- Afshar applied.
  • When a court is able to reach a clear conclusion that the provision of the additional information would not have altered the claimant’s decision to proceed with the proposed operation or treatment the claimant will fail on causation and Chester -v- Afshar will have no application.

NOTE

This highlights the need to consider evidence in relation to causation. It is a difficult task. The claimant is always looking at the matter (and giving evidence) with the benefit of hindsight.  A trial judge can reject even the most strident evidence from a claimant as to his or her actions had they been given full information.

THE JUDGMENT ON CAUSATION

Causation
55. In the light of my conclusion that there was no breach of duty the question of
causation does not arise.
56. If, however, I had accepted the opinion of Mr. O’Neill and also found that the
defendant was in breach of duty because of a failure to inform the claimant that the
length of the vertical scar could vary I would have found that the claimant had failed
to establish causation applying conventional principles. This is because, as Mr.
Sheldon, counsel for the defendant, has pointed out, the correct question would be
whether the claimant would have proceeded with the abdominoplasty operation if she
had been informed that the length of the scar could vary. In paragraph 53 of her
witness statement the claimant considered a different question, namely what she
would have done if she had been advised that she would be left with a 7em scar. She
stated “had I been advised that I would have been left with a 7cm scar which would
have been visible above my bikini I would never have consented to the
abdominoplasty “. I have not received any evidence about what she would have done
if she had been informed that the length could vary. However, the fact of the matter is
that the 5 diagrams were only diagrams. They did not purport to be precisely to scale
and the claimant was given no assurance about length. The claimant was made well
aware of other risks associated with the operation, and was prepared to proceed
nevertheless. I must disregard the benefit of hindsight. I also take into account her
general concerns about her body shape as indicated in paragraph 29 above. On the
hypothesis which I am considering (namely that contrary to my finding in paragraph
46 she was not informed of the unpredictability of the scar length and that it could
vary) I consider that if she had been so informed she would have consented to the
operation. This view is consistent with my findings as to what in fact occurred.
57. Ms Hannah Godfrey, on behalf of the claimant, submitted that if the claimant failed to
establish causation on the application of conventional principles then I should permit
a modification of the test as occurred in Chester v Afshar [2005] I AC !34. She
submitted that this would allow the claimant to recover and thereby vindicate the
interference with her right to autonomy. I would have rejected this submission.
58. In Chester v Afshar the defendant neurosurgeon negligently failed to warn the
claimant of the small risk of her developing cauda equina syndrome during a
proposed surgical procedure on her spine. The claimant underwent the operation and
the risk eventuated. The trial judge found that if she had been properly informed she
would have sought advice on alternatives to surgery and the operation would not have
taken place when it did. However, the judge made no findings about whether the
claimant would subsequently have decided to undergo the operation. Applying
conventional principles the claimant would have failed to establish causation. The
House of Lords, by a majority of 3 to 2, held that justice required a
modification of traditional causation principles to vindicate the claimant’s right of
choice and to provide a remedy for the defendant’s breach of duty.
59. The ambit of Chester v Afshar was considered by the Inner House of the Court of
Session in NM v Lanark hire Health Board [2013] CSIH 3. The pursuer was under
the care of the defendants’ maternity hospital. During the course of a vaginal delivery
her baby became subject to shoulder dystocia whereby the umbilical cord was
occluded and the baby was deprived of oxygen for some minutes. The baby suffered
cerebral palsy and brachial plexus injury. One of the issues was whether a consultant
obstetrician should have warned the pursuer of the risk of shoulder dystocia. At trial
the Lord Ordinary found that there was no negligence in failing to inform the pursuer
of this risk. He nevertheless considered causation and found as a fact that if the
pursuer had been advised of the relevant risk she would have been persuaded by the
consultant to attempt vaginal delivery in the first instance.
60. On appeal the pursuer contended that the normal “but for” rules or principles of
causation should not apply, and that a causal link was established if a risk of grave
consequences in fact materialised. Thus the Inner House was called upon to examine
the ambit of Chester v Afshar.
61. Lord Eassie concluded that the case was not within the ambit of Chester v A(Shar. He
said at paragraphs 51 and 52:
[51] “On our reading of the speeches of the majority it is not apparent that they
intended that the modification of causation principles which they were prepared to
make in Miss Chester’s case should apply generally to all cases in which a medical
practitioner has failed in a duty to advise of risk . In the course of para 85 of his
speech, Lord Hope dealt with the matter thus:
‘I would prefer to approach the issue which has arisen here as raising an issue of
legal policy which ajudge must decide. It is whether, in the unusual circumstances of
this case ,justice requires the normal approach to causation to be modified. ‘
(Emphasis added.)
In, and after, para 63 of his speech Lord Hope went on to refer without disapproval to
a number of cases in which the claimant failed because the courtfound on the
evidence that the claimant would probably have agreed to the particular operation in
question, even if advised of the risks which it entailed. Further, Lord Steyn observes
(para 19):
‘Fourthly, it is a distinctive feature of the present case that butfor the surgeon’s
negligent failure to warn the claimant of the small risk of serious injury the actual
injury would not have occurred when it did and the chance of it occurring on a
subsequent occasion was very small. It could therefore be said that the breach of the
surgeon resulted in the very injury about which the claimant was entitled to be
warned.’
In his speech (para 96) Lord Walker drew attention to the difficulty which the trial
judge found in saying what would have resulted from the claimant’s receivingfurther
advice and the improbability of herreceivingfuture surgery identical in
circumstances (including nature ofsurgery, procedure and surgeon) to the surgical
operation which she actually underwent. It may also be noted that the decision of the
High Court ofAustralia in Chappel v Hart, upon which some reliance wasplaced,
also involved a patient contemplating elective surgery who, if she had been properly
advised of the risks, would have sought a second opinion and, if later choosing to
undergo surgery, would have undergone it with a more experienced surgeon. In these
circumstances it respectfully appears to us that the situation in which the majority of
their Lordships in Chester v Afshar considered that liability should exist was one
where a warning of risk would have resulted in the patient seeking further advice
elsewhere, with resultant uncertainty as to whether the patient would have undergone
at afuture date an identical procedure in which the same risk might or might not have
materialised. Their Lordships’ concern was to supply a causal link in the rare case in
which the patient’s reaction could not be established in evidence.
[52} But in our view the present case differs materially from that situation. One is not
in the area of truly elective surgery. The birth of a baby cannot simply be put off or
postponed, like a planned procedure. Not surprisingly, therefore, it was never part of
thepursuer’s case that she would have deferred matters and takenfurther advice, the
outcome of which might be uncertain. Her position as set out in the pleadings was
that had she ‘beenproperly advised she would have undergone delivery by Caesarean
section ‘. In the event, the Lord Ordinary concluded on the evidence, contrary to that
averment, that even if advised of the relevant risks the pursuer would yet have been
persuaded by Dr MeL to attempt vaginal delivery in thefirst instance. There is thus a
specific, positive finding infact as to thepursuer’s response were she to have been
advised of the risksflowing from shoulder dystocia. It is notsubmitted that the Lord
Ordinary was not entitled to make thatfinding. Accordingly we think that counselfor
the respondents were correct in submitting that thepresent case issimply not within
the ambit of what their Lordships had in mind in Chester vAfshar. ”
62. I was referred by Mr Neil Sheldon, for the defendant, to Meiklejohn v St. Geon!e’s
Healthcare NHS Trust [2014] EWCA Civ 120 where the Court of Appeal touched
upon the Chester v Afshar decision. The issue was whether the claimant, who suffered
from aplastic anaemia would have rejected a proposed course of treatment (Anti
Lymphocyte Globulin, or ALG) if informed of alternative options, and thereby
avoided the development of avascular necrosis. The trial judge had found as a fact
that even if alternative treatment options had been discussed the consultant concerned
would have recommended ALG and the claimant would have accepted that advice.
On appeal reliance was placed upon Chester v Afshar. Rafferty LJ said at paragraph
34:
“Chester is at best a modest acknowledgement, couched in terms of policy, of narrow
facts far from analogous to those we are considering. Reference to it does not
advance the case for the Claimant since I cannot identify within it any decision of
principle. ”
63. In my judgment where the court is able to reach a clear conclusion that the provision
of the additional information would not have altered the claimant’s decision to
proceed with the proposed operation or treatment the claimant will fail on causation,
and Chester v Afshar will have no application”

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: