Date: Thu, 14 Oct 2004 15:58:25 -0600

From: Lewis Klar

Subject: Afshar

It would be useful if courts analyzed the matter in terms of redefining the injury. As Robert indicates, failure to warn of risks is deemed to be negligent not because it causes an injury to occur in a medical procedure, but because it causes the plaintiff to lose her choice to decide whether or not to undertake treatment. The injury which happened in the operation, did not occur because the doctor failed to warn her - the warning or lack of it really had nothing to do with it. (It is a causa sine qua non, not a causa causans, if I remember my Latin properly). The injury is thus really "loss of a choice". Viewed in this way, traditional tort law liability principles do not have to be mucked around with. There is duty, breach, damage (loss of choice), and cause.

Then we could move to assessment of damages for the injury. How much is a loss of a choice worth? Well, if the plaintiff would have definitely had the operation anyway, not much. Maybe some nominal damages for being denied the privilege of agreeing to the procedure. If the plaintiff definitely would not have had the operation, then the loss of a choice might be worth a great deal - what she suffered from the treatment as compared to her health status without the treatment. Then there is the mushy middle; that is the "probability" that she would have chosen one thing or another. I would argue that in dealing with assessment of damage we ought to operate on simple probabilities; that is, the damages are not all or nothing, but depend on the degree of likelihood of having treatment or not. For example, if there was a 60% chance of her opting for no treatment, she should get 60% of what a 100% denial would have given her and so on. I know that there are some who would argue that possibilities are only relevant when assessing damages for future hypotheticals and not for past hypotheticals, but I disagree. I think when assessing damages, possibilities should always be considered and treated accordingly, whether for past or future events.

Lewis Klar
University of Alberta

>>> Robert Stevens 10/14/2004 1:26:33 PM >>>

My first reaction is one of puzzlement. All five of them both in the majority and minority, to a greater or lesser extent, seem to think that the case concerned a problem with the "but for" test. This is not so.

The 'but for' test requires that the claimant establishes that the loss suffered would not, on the balance of probabilities, have occurred but for the defendant's negligence. It is (generally) a necessary requirement of liability. It is a mechanistic test.

Dr A negligently fails to warn patient B of the 1% chance of an operation going wrong. The chance is specific to the operation and not the patient. The patient has the operation, which is performed carefully, on the next day and the 1% chance eventuates. B suffers terrible injuries.

Three cases need to be differentiated.

1. If warned, B would have had precisely the same the operation at the same time anyway. B cannot show that but for D's negligence she would not have suffered the injury. She can show that she has lost the choice, but we don't generally compensate for the loss of those in tort.

2. If warned, B would not have had the operation at all. B can show that but for the defendant's negligence she would not have suffered the injury. The denial of the choice has caused the injury and B should recover in full.

3. (Chester) If warned, B would not have had the operation immediately but would have gone ahead at a later date. Again, B can show that but for the defendant's negligence she would not have suffered the injury. An operation at another time on another day would very probably have gone well.

It does not follow, however, that B should be able to recover. Even though the 'but for' test can be satisfied B's claim should fail. This can either be put in terms of the 'scope of the duty' or 'remoteness' according to taste.

The purpose of the duty to warn is to enable the patient to make an informed choice about whether to have the operation AT ALL. The purpose of the duty is not to enable the patient to make an informed choice about whether to have the operation on a particular day.

If I drive my car carelessly the wrong way round a roundabout during a severe storm and my passenger is struck by a bolt of lightning which would not have hit if I had gone the right way, I should not be liable. The duty to take care in driving is to guard against car crashes not lightning bolts, even if the latter are foreseeable.

I wonder how easy Chester v Afshar is to square with SAAMCO:

"A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee."

The purpose of the duty is to protect against injuries caused by the failure of the knee, not rock falls. The loss is too remote, even though reasonably foreseeable.

SAAMCO was the same except that the fall was of a market rather than rocks. I suppose that we can say that the mountaineer suffered an injury which could never be within the scope of the doctor's duty, where as the patient in Chester suffered an injury which can be within the scope of the doctor's duty.

A 'no liability' conclusion would not have left the duty 'empty' any more than it would in, say, Barnett v Chelsea Hospital. Patients who wouldn't have gone ahead with the operation at all could still claim.

I think their Lordships have been let down by counsel.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>