Chester v Afshar
| Jurisdiction | England & Wales |
| Judge | Sir Denis Henry |
| Judgment Date | 27 May 2002 |
| Neutral Citation | [2002] EWCA Civ 724 |
| Docket Number | Case No: B3/01/0068/QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 27 May 2002 |
[2002] EWCA Civ 724
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(His Honour Judge Robert Taylor)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lady Justice Hale
Sir Christopher Slade and
Sir Denis Henry
Case No: B3/01/0068/QBENF
Mr M Spencer (instructed by Hempsons) for the Appellant
Miss J Perry (instructed by Eversheds, Manchester) for the Respondent
This is the judgment of the court to which all its members have contributed.
The defendant appeals against the order made by His Honour Judge Robert Taylor, sitting as a Judge of the High Court in the Queen's Bench Division, on 21 December 2000 in a medical negligence action. The judge found that the defendant had not been negligent in his conduct of the operation but had been negligent in failing to warn the claimant of the risk of paralysis which in fact ensued. He held the defendant liable for the injuries sustained in the operation and gave judgment for the claimant for damages to be assessed.
The appeal raises the important and difficult question, not so far considered at appellate level in this country, of when a doctor should be held to have caused the injury, the risk of which he failed to give proper warning to his patient. The judge gave permission to appeal on that issue. The defendant also wishes to challenge the judge's finding of fact that a proper warning had not been given and to argue that the allegation should not have been pursued because it was not properly pleaded. The claimant wishes to challenge the judge's finding of fact that the operation had not been negligently performed, but only should she lose the appeal on the main issue. She also has permission to appeal against the costs order made by the judge, but that has not been argued pending the determination of the current appeal.
The facts
The claimant in this action, Miss Chester, was a working journalist born in 1943, who had had various episodes of back pain from April 1988. For these she was conservatively treated by Dr Wright, a consultant rheumatologist. In September of 1994 she had a fifth episode of back trouble, very shortly before she was to undertake a professional engagement in France. The episode was so severe that walking was painful. She consulted Dr Wright, who gave her an epidural injection to tide her over the trip, and on her return arranged for her to have a MRI scan.
On 13 October 1994, Dr Wright saw Miss Chester again, having seen the results of the scan which showed "A very substantial centro-lateral variation at L2/3, central canal stenosis at L3 and L4/5". He advised the claimant to consider surgery to her back. She made it clear that she wished to avoid surgery if at all possible, expressing a general aversion to it. Accordingly, he gave a sinu-vertebral block injection at L2 level and a large volume epidural injection. As this brought about no clear improvement, Dr Wright repeated his advice as to surgery, this time recommending two practitioners, one of whom was the defendant, Mr Afshar, an eminent neurosurgeon.
Miss Chester was not impressed by this choice. She wanted a consultant (a word she understood as "advisor") to advise her on alternatives to surgery, while Dr Wright was advising surgery and sending her to a surgeon. In his letter of referral to Mr Afshar, Dr Wright wrote that she was "… anxious to avoid surgery if at all possible … I feel sure she will take a long time to recover without your assistance." As the last sentence implied, surgery then was elective rather than necessary. She did not need emergency surgery.
Miss Chester had her consultation with Mr Afshar as his last appointment on 18 November 1994, a Friday. He examined her for 15 minutes and some 30 minutes was spent in discussion. It is common ground that Mr Afshar advised Miss Chester that the three intra-vertebral discs in question should be removed. But there was a sharp conflict of evidence as to the detail of the conversation. Mr Afshar gave an account in which he dealt with the risk of cauda equina nerve root disturbance, while according to Miss Chester there was no such explanation. Miss Chester's account was summarised thus by the judge (we have corrected clerical errors in his verbatim quotations from the witness statements but adopted his summaries of the oral evidence, taken from his notes):
"23. According to the Claimant, she was never adequately warned of the possible risks involved in such an operation. Her account of what she was told by the Defendant on 18 November 1994 is set out in the following terms in paragraph 5 of her first witness statement, which is dated 22 September 1999 [TB Volume 1, pages 64–65]:
'I first met the Defendant, Mr Afshar, on 18 November 1994 when I attended his Harley Street surgery for examination. On that occasion, I was accompanied by my husband and, after studying the MRI scan which was taken on 6 October 1994, Mr Afshar quite matter of factly said I needed surgery to remove three discs, which were the cause of my problem. As I was very concerned about having to undergo surgery for my problem, I asked what the success rate of such an operation was, but did not receive a clear answer from Mr Afshar, although he did tell me that he performed about 300 operations such as this per year. As I was concerned, I told him of the many horror stories I had heard about back operations and he laughed, stating that he had never crippled anybody yet. Indeed, so confident was he that I distinctly remember that, almost as an aside, he stated: "Of course, you could be my first". Certainly it occurred to me that removal of three discs was rather a lot, and when I put this to Mr Afshar, he almost dismissively agreed. Further, when he told me the time at which he was to perform the surgery, I did suggest that it was rather late in the evening, but Mr Afshar responded that he would not be tired and was capable of working through the night when necessary. As a result of Mr Afshar's confidence in performing the surgery, and because he was recommended by Dr Wright, I agreed to undergo the operation. However, at no time was it suggested to me that there could be serious complications which could lead to any form of paralysis or leave me in a wheelchair. Indeed, if I had been aware of the major complications associated with this surgery then, due to my fear of surgery, I would have obtained at least a second, if not a third, opinion. Unfortunately, Mr Afshar never provided me with information on the seriousness of possible complications and as a result I lost the opportunity to seek an alternative opinion.'
In the course of her evidence, she somewhat expanded this account in response to counsel's questions. In her evidence-in-chief, the Claimant said this:
'After examination Mr Afshar showed me the scan. He pointed out three bulges and said they shouldn't be there and would all have to come out. When I was told this I felt terrible because he was, in effect, saying that I would have to have surgery. I didn't want to have surgery. I asked Mr Afshar if there was any other way to escape having surgery. He didn't give me any alternatives. He said I had three discs which would have to be removed—and that in a couple of months I would be back doing the work I had always done. He said I would be eight to ten days in hospital, after which I would have to rest up a bit. I said I had heard a lot of horror stories about surgery and I wanted to know about the risks. The reply I got from Mr Afshar was: "Well, I have never crippled anybody yet". It was a throw-away line. He did add: "Of course, you could be my first". I didn't take this seriously, in a crippling sense. I just took it that it was a very easy operation—Zum! Zum! Zum! One of my questions to Mr Afshar in Miss Martin's office was: "Isn't three discs rather a lot?" the answer was matter-of-factly: "Yes" … I agreed to the surgery because Mr Afshar made it sound really simple. He did not tell me about any downside or risks whatever. He made it sound easy. He said he did about 300 such operations a year, so I said: "Let's do it". If I had been provided with an alternative that didn't involve surgery, as I now know them to be, I would have taken it. If I had been told of the risks of surgery, as I now know them to be, I would not have had the operation on Monday 21 November. I would have had a very shaky weekend and called various journalist friends as to who I should go to see. I would also have contacted the BMA. I would have wanted at least two further opinions as to whether an operation was necessary in the first place. Nobody had said to me that this was a life-and-death matter and: "If you don't have this operation you will end up in a wheelchair". Dr Wright and Mr Afshar had never said this. The operation sounded so simple and routine.'
When cross-examined, she replied:
'I asked a lot of questions about the operation. Before I went to see Mr Afshar I knew surgery was a possibility. I hadn't done any research about surgery beforehand. Mr Afshar did not discuss any risks with me whatsoever. He didn't mention haemorrhage. I did not mention paralysis specifically, but I may have implied this when I spoke of horror stories. If I had learnt that, as has subsequently come out, I was a high risk patient, I would not have gone for operation on the Monday, nor would my husband have let me. Mr Afshar never mentioned the risk of paralysis. He never mentioned the risk of being crippled, except in a throw-away line at which we laughed. It was not mentioned that there was a small risk of nerve...
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