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Chester v Afshar [2004] 3 WLR 927

Hospital doctor injury

Chester v Afshar [2004] 3 WLR 927 is a Tort Law case, concerning medical negligence and focuses on causation. 

Facts:

The claimant had a bad back pain which limited her ability to walk.  A doctor, the defendant, advised her to do a surgery. However, the surgery had a 1% chance to worsen the issue. Moreover, the doctor did not inform the patient about the possible risks. The claimant agreed to do the surgery and fell within the 1%. She argued that she may not have consented to the surgery if she was aware of the possible risks. 

Issues:

The issue in Chester v Afshar [2004] 3 WLR 927 was that whether or not the doctor was liable for the patients worsened back pain.

At first instance, the judge determined that even though the doctor was not negligent in his surgical performance, he was liable for having failed to inform the claimant of the risks. If the operation had been performed on another date, her injuries may not have been worsened. At first appeal, the Court of Appeal approved the initial decision. 

The defendant appealed.

He submitted that there was no causation as the possibility of the claimant to have consented to the surgery at some point did not change the fact that it bore the risks. 

Held:

The House of Lords dismissed the appeal (in a 3 – 2 split decision).

The defendant had failed to carry out his professional duty and advise the patient about all the possible risks of the surgery. The ‘But for’ test was satisfied since the claimant would not have had the operation if the warning had been given. However, the risk of which she should have been warned was not created by the failure to warn. Nevertheless, a doctor has a duty to inform the patient about all the possible risks so that the patient makes an informed choice whether to undergo the treatment recommended.  

In conclusion, the judge held that the claimant deserved a remedy. 

References: [2005] 1 AC 134, [2004] UKHL 41, Times 19-Oct-2004, [2004] 3 WLR 927, 67 BMLR 66

Read our notes and other cases on Breach of Duty and Causation for more information on Negligence. 

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