Dear All,

 

The point has arisen in the Scottish case of Moyes v Lothian Health Board [1990] 1 Med LR 463 at 467 (Court of Session, Outer House). Lord Caplan accepted the pursuer's argument that failure to warn about overall risk could establish causation where the risk that actually materialised had been warned about:

 

            "The ordinary person who has to consider whether or not to have an operation is not interested in the exact pathological genesis of the various complications which can occur but rather in the nature and extent of the risk.  The patient would want to know what chance there was of the operation going wrong and if it did what would happen.  If we were to suppose a situation where an operation would give rise to a one per cent. risk of serious complication in the ordinary case but where there could be four other special factors each adding a further one per cent. to the risk, a patient to whom all five factors applied might have a five per cent. risk rather than the one per cent. risk of the average person.  It is perfectly conceivable that a patient might be prepared to accept the risk of one in 100 but not be prepared to face up to a risk of one in 20.  If a doctor contrary to established practice failed to warn the patient of the four special risks but did warn the patient of the standard risk and then the patient suffered complication caused physiologically by the standard risk factor rather [than] by one or other of the four special risk factors I do not think the doctor should escape the consequences of not having warned the patient of the added risks which that patient was exposed to.  A patient might well with perfect reason consider that if there were five risk factors rather than one then the chance of one or other of these factors materialising was much greater.  The coincidence that the damage which occurred was due to the particular factor in respect of which a warning was given does not alter the fact that the patient was not properly warned of the total risks inherent in the operation and thus could not make an informed decision as to whether or not to go through with it... If he had been given due warning he would not have risked suffering adverse complication from that particular operation and the fact that such complication occurred is causal connection enough to found a claim against the doctor."

 

However, the pursuer failed on causation on credibility as to whether she would have declined treatment if informed about the risks, since she had said in evidence that she knew that general anaesthetic posed a risk (which she was willing to accept), and she estimated (wrongly) that this was about 5%, when the total risk from the procedure in question (angiography) and the anaesthetic was much lower.

 

With regard to Jane’s “scope of liability for consequences” point, presumably there is scope for disagreement as to what the scope of liability for the consequences should be in the case of a doctor failing to warn about risks of treatment. If one accepts the argument of the majority in Chester v Afshar that failure to warn is about respect for autonomy and leaving the power of decision-making with the patient, then negligent non-disclosures which would have affected the patient’s decision one way or the other (tipped the balance) constitute the breach of autonomy.  If the consequence that materialises is a risk of the very procedure that would have been declined (even if that risk was actually warned about) then the damage is the crystallisation of the interference with the patient’s autonomy (i.e. the patient’s freedom to make the informed choice).  To me, that seems to fall within the “scope of liability for consequences” that should apply following non-disclosure of decision-critical information. If the injury that occurs was truly coincidental (e.g. the operating table collapsed during the surgery causing injury to the patient) then it would fall outside the scope of liability for the consequences.  I would equate the collapsing operating table with Lord Hoffmann’s avalanche.  Maybe this view depends on whether one thinks Chester is correct [but I’m not suggesting that we start another thread discussing the rights and wrongs of Chester, which I think has been done in the past].

 

Best wishes,

 

Michael

 

 

Dear Colleagues;