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. Chester v Afshar[v] On 21 st November 1994 Mr Afshar carried out a microdiscectomy at three disc levels on Miss Chester. After an MRI scan it was was reveled that there was a disk protrusion into the spinal column and she was therefore advised to have surgery. Judgement for the case Chester v Afshar D breached his tortious duty to P to warn her of the possible complication of an operation and this complication occurred. INTRODUCTION In its decision in Chester v Afshar,1 a 3:2 majority of the House of Lords held that the scope of a doctor’s duty to warn his patient of a non-negligible risk inherent in surgery extends to liability for personal injuries sustained by the patient as a result of the actuation of such risk. 587; Times, October 19, 2004; is an important English tort law case regarding causation in a medical negligence context. In-house law team. Surgeon found to be in breach of duty for failing to warn, however small the risk is. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. Ms Duce did not argue that the operation was performed negligently. Introduction Shortly after Fairchild v. Glenhaven Funeral Services Ltd.,1 the House of Lords once again departed from orthodox causation rules in order to assist what it thought was a deserving plaintiff. Chester v Pashas brings rise to two key issues in medical law which is: the rules of causation and the disclosure of information before obtaining any patients consent to treatment. The above cases (Chester v Afshar and Gregg v Scott) reveal important issues that are examined when determining the causative in a doctor/patient case. Miss Chester contended at trial that Mr Afshar had performed the operation negligently, but the judge rejected this complaint and in the event the … Her surgeon, Mr Afshar failed to inform her of the 1-2 % risks of these surgeries going wrong. To export a reference to this article please select a referencing stye below: Our academic writing and marking services can help you! VAT Registration No: 842417633. Appeal from – Afshar v Chester CA (Bailii, Times 13-Jun-02, Gazette 18-Jul-02, EWCA Civ 724, QB 356, 3 All ER 552, 3 WLR 1195, 67 BMLR 66) The surgeon carried out the operation successfully, but the claimant suffered consequential post operative damage. Registered Data Controller No: Z1821391. A surgeon's duty to warn of surgery risks - Causation - a worrying development for defendants The recent House of Lords decision in Chester v Afshar (handed down on 14th October 2004) has set alarm bells ringing for defendants and their insurers alike. Notably, this surgery carried a very minor risk (1% approximately) that it would in fact worsen the issue, however the claimant had not been warned of this risk by the defendant. The issue in Chester v Afshar 3 WLR 927 was that whether or not the doctor was liable for the patients worsened back pain. Shortly after Fairchild v. Glenhaven Funeral Services Ltd., the House of Lords once again departed from orthodox causation rules in order to assist what it thought was a deserving plaintiff. Chester v Afshar [2004] UKHL 41 is an important English tort law case regarding causation in a medical negligence context. Establishing causation following consent to medical treatment and subsequent injury. In finding that an NHS trust had not breached its duty of care by failing to warn a patient of the risk of developing chronic post-surgical pain following a total abdominal hysterectomy and bilateral salpingo-oophorectomy, the Court of Appeal has provided useful guidance on the duty to disclose material risks to a patient post-Montgomery v Lanarkshire Health Board as well as some helpful commentary on the use of the ‘but for’ causation test following the decision in Chester v Afshar. Appeal from – Afshar v Chester CA (Bailii, Times 13-Jun-02, Gazette 18-Jul-02, EWCA Civ 724, QB 356, 3 All ER 552, 3 WLR 1195, 67 BMLR 66) The surgeon carried out the operation successfully, but the claimant suffered consequential post operative damage. Mrs C was very nervous about her surgery, later medical evidence suggests the possibility of spinal damage (which she eventually sustained) was about 1-2%. Chester v Afshar 1. The case of Chester v. Afshar suggested that the Fairchild ratio could be extended to beyond industrial disease cases. Mrs C's physician omitted to inform her of the possibilities of spinal damage. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. The claimant Chester, had managed with bad back pain for several years, which severely limited her ability to walk around and interfered with her ability to control her bladder. Notably, whereas from a common man's perspective a doctor may be fully responsible for certain condition, this is not always the case when arguing from the law's point of view. As a patient, trust is placed upon the doctor or physician to properly educate and make the patient aware any potential risks or benefits of a procedure. Miss Chester contended at trial that Mr Afshar had performed the operation negligently, but the judge rejected this complaint and in the event the Court of Appeal was not asked to rule on that question. Abstract: Shortly after Fairchild v. Glenhaven Funeral Services Ltd., the House of Lords once again departed from orthodox causation rules in order to assist what it thought was a deserving plaintiff. Mrs C was very nervous about her surgery, later medical evidence suggests the possibility of spinal damage (which she eventually sustained) was about 1-2%. The House of Lords decided that a d... World Heritage Encyclopedia, the aggregation of the largest online encyclopedias available, and the most definitive collection ever assembled. It is just over a decade since the House of Lords handed down judgment in the medical non-disclosure case of Chester v Afshar. The claimant, Miss Chester, was going to have a surgery for her back pain. The claimant subsequently submitted she may not have consented to the surgery had she been aware of the possible risks. It was therefore suggested that had she been informed she would have had the surgery at another time, which would probably not have led to the unfortunate r… The House of Lords decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. He did not warn her on the significant risk which a doctor had a duty to inform under Montgomery. 587; Times, October 19, 2004; is an important English tort law case regarding causation in a medical negligence context. 927; [2004] 4 All E.R. It resulted in significant nerve damage and left her partially paralysed. In Chester v. Afshar, the highest English court went further than it had previously dared to by accepting such a departure in a medical liability case. Facts. Chester v Afshar UKHL 41 is an important English tort law case regarding causation in a medical negligence context. CHESTER V.AFSHAR: STEPPING FURTHER AWAY FROM CAUSATION? The claimant Chester, had managed with bad back pain for several years, which severely limited her ability to walk around and interfered with her ability to control her bladder. The chances of such type of damage is completely random, which the competence of the surgeon has no bearing. In Chester v. Afshar, the highest English court went further than it had previously dared to by accepting such a departure in a medical liability case. In Chester v. Afshar, the highest English court went further than it had previously dared to by accepting such a departure in a medical liability case. Surgeon failed to disclose very small risk of paralysis, which she eventually suffered.Is he liable for failing to inform her of the risks? When Miss Chester regained consciousness she reported motor and sensory impairment below the level of L2. Chester v Afshar: Case Summary The Claimant suffered back pain for 6 years which became severe to the point at times she was unable to control her bladder or walk. Scope of Duty and Causation: Chester v Afshar Revisited Join us for an evening looking at scope of duty and causation in medical claims based on Chester v Afshar [2005] 1 AC 134, which have come to the fore in recent cases such as Pomphrey v Secretary of State for Health [2019] 4 WLUK 483 or Khan v … In Chester v Afshar, a gap was left open for claimants to argue that traditional causation principles should be by-passed in the interests of justice.In the case of Beary v Pall Mall Investments [2005] EWCA Civ 415, the Court of Appeal has virtually closed that gap.Professionals working in non-medical fields, along with their insurers, will breathe a sigh of relief at the decision. Chester v Afshar [2002] Lloyd's Rep Med 305 CIVIL DIVISION Lady Justice HALE, and . Her surgeon , Mr Afshar failed to inform her of the 1-2 % risks of these surgeries going wrong. of Chester v Afshar A. 38. Chester v Afshar: Case Summary The Claimant suffered back pain for 6 years which became severe to the point at times she was unable to control her bladder or walk. After an MRI scan it was was reveled that there was a disk protrusion into the spinal column and she was therefore advised to have surgery. In Chester v. Afshar, the highest English court The House of Lords decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. In Chester v Afshar itself, Lord Hope argued that the claim should fail on what he called ‘conventional causal principles’, because although the but-for test was satisfied, the inherent risk which had materialized ‘was not increased, nor were the chances of avoiding it lessened’ by the defendant’s failure to disclose it. The House of Lords decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. 1 The decision in Chester was that of a bare majority of the House, with Lord Bingham and Lord Hoffmann dissenting. Discover the world's research. At first appeal, the Court of Appeal approved the initial judgment. The House of Lords dismissed the appeal (in a 3 – 2 split decision), holding that the defendant had failed in his tortious professional duty, satisfying the ‘but for’ test, and that the claimant deserved a remedy. Chester v Afshar [2004] UKHL 41 is an important English tort law case regarding causation in a medical negligence context. Chester v afshar: lt;p|>||Chester v Afshar|| [2004] medical negligence context. The surgery was performed accurately and as efficiently as possible by Dr. Afshar. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. We also have a number of sample law papers, each written to a specific grade, to illustrate the work delivered by our academic services. Miss Chester's case that the operation was performed negligently was rejected by the trial judge (Judge Robert Taylor). The House of Lords decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. All these duties Mr Afshar duly performed. The claimant agreed to the operation, which was carried out responsibly, however she fell within the 1%. Company Registration No: 4964706. 927; [2004] 4 All E.R. Chester v Afshar This case involved a surgeon who failed to warn a patient of the potential risks of the operation, the court held that the scope of the surgeon’s duty of care to his patient included a duty to warn of any risks, hence there should be a remedy where a doctor failed to fulfil that duty. Establishing causation following consent to medical treatment and subsequent injury. An MRI scan revealed that there was disc protrusion into her spinal column and she was advised to have surgery. *You can also browse our support articles here >. Looking for a flexible role? Breaking the chain-Wikipedia. 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. Free resources to assist you with your legal studies! I will then look at causation in relation to disclosure of information and risks presented as this is relevant to Chester v Afshar. Save my name, email, and website in this browser for the next time I comment. Chester v. Afshar [2004] UKHL 41 Country: United Kingdom Region: Europe Year: 2004 Court: House of Lords Health Topics: Health information, Informed consent, Medical malpractice Human Rights: Right to bodily integrity Facts Carole Ogilvy Chester made a claim of medical negligence against her surgeon Fari Afshar and sought damages. This became quite severe and at times she was unable to walk or control her bladder. The factual background was that the claimant had suffered from heavy and painful periods as well as lower back pain. A patient, Miss Chester, was under the care of a neurosurgeon, Mr Afshar, for a 6-year history of back pain and she had been shown to have a vertebral disc protrusion on an MRI scan. Miss Chester must show that Mr Afshar's failure to warn her of the risk of the damage she sustained caused her to suffer that damage. Failure to do so can be deemed as negligent. Any information contained in this case summary does not constitute legal advice and should be treated as educational content only. This thesis shall critically examine the cases of Chester v Afshar and Gregg v Scott to establish whether the cases can co-exist despite the stark differences in judicial reasoning to similar causal difficulties in each case. The House of Lords decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. The House of Lords decided that a doctor's failure to inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. There was no complication during the operation and the surgeon was satisfied that his objectives had been met. As a patient, trust is placed upon the doctor or physician to properly educate and make the patient aware any potential risks or benefits of a procedure. 14th Jun 2019 Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. The House of Lords decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. Chester v. Afshar [2004] UKHL 41; [2005] 1 A.C. 134; [2004] 3 W.L.R. I will first review the rules of causation before relating these to Chester v Afshar. In addition, the judge at first instance also found that causation had not been established and the claimant appealed on the basis that Chester -v- Afshar applied. Dr. Afshar advised her to go in for surgery, which she did. Do you have a 2:1 degree or higher? In finding that an NHS trust had not breached its duty of care by failing to warn a patient of the risk of developing chronic post-surgical pain following a total abdominal hysterectomy and bilateral salpingo-oophorectomy, the Court of Appeal has provided useful guidance on the duty to disclose material risks to a patient post-Montgomery v Lanarkshire Health Board as well as some helpful commentary on the use of the ‘but for’ causation test following the decision in Chester v Afshar. The House of Lords decision: By a 3-2 majority made an exception in the circumstances as it was fair to vindicate the surgeons right to an informed choice.It was thus willing to modify causation rules on the policy grounds of how wrong it is to not inform patients of risks. He examined her for 15 minutes and some 30 minutes was spent in discussion. 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. Chester v Afshar (2004) English Medical Law ‘No Full Disclosure’ by Robert Burridge ‘But for’ causation and the principles of tort, while reminiscent of criminal procedure, can fall foul to policy loopholes when a duty of care is involved. Chester v Afshar. Mrs C's physician omitted to inform her of the possibilities of spinal damage. Reference this Mr Afshar did examine Miss Chester, did advise and did undertake surgery. Miss Chester had her consultation with Mr Afshar as his last appointment on 18 November 1994, a Friday. Take a look at some weird laws from around the world! Chester v Afshar [2004] UKHL 41 is an important English tort law case regarding causation in a medical negligence context. Chester v Afshar is an English tort law case regarding medical negligence and the importance of informing patients of potential risks that are associated with any medical procedure. In a detailed and careful judgment the Court of Appeal (Hale LJ, Sir Christopher Slade and Sir Denis Henry) upheld the conclusion of the judge: Chester v Afshar  EWCA Civ 724;  QB 356. The pain could be severe and she had experienced episodes of being unable to walk or control her bladder. At first instance, the judge determined that whilst the defendant had not been negligent in his surgical performance, he was liable for having failed to adequately inform the claimant of the risks, as had the operation been performed on an alternative date, her injuries may not have been exacerbated. Causation (law)-Wikipedia. Chester v. Afshar [2004] UKHL 41 Country: United Kingdom Region: Europe Year: 2004 Court: House of Lords Health Topics: Health information, Informed consent, Medical malpractice Human Rights: Right to bodily integrity Facts Carole Ogilvy Chester made a claim of medical negligence against her surgeon Fari Afshar and sought damages. Chester v Afshar [2004] UKHL 41 is an important English tort law case regarding causation in a medical negligence context. INTRODUCTION In its decision in Chester v Afshar,1 a 3:2 majority of the House of Lords held that the scope of a doctor’s duty to warn his patient of a non-negligible risk inherent in surgery extends to liability for personal injuries sustained by the patient as a result of the actuation of such risk. He did not warn her on the significant risk which a doctor had a duty to inform under Montgomery. Chester v Afshar [2004] UKHL 41 is an important English tort law case regarding causation in a medical negligence context. Chester v Afshar is an English tort law case regarding medical negligence and the importance of informing patients of potential risks that are associated with any medical procedure. It was therefore suggested that had she been informed she would have had the surgery at another time, which would probably not have led to the unfortunate r… There was no suggestion here that Miss Chester was more at risk at the hands of Mr Afshar due to any lack of experience on his part than she would have been at the hands of anyone else. The House of Lords decided that a doctor's failure to inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. Mr Afshar did examine Miss Chester, did advise and did undertake surgery. Chester v Afshar [2004] UKHL 41 is an important English tort law case regarding causation in a medical negligence context. The House of Lords decided that a d... World Heritage Encyclopedia, the aggregation of the largest online encyclopedias available, and the most definitive collection ever assembled. In accordance with logic and authority (eg Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602) the answer to that question must considerably depend upon the answer to the further question of what would have happened if she had been properly warned. Chester v. Afshar Lara Khoury* I. The House of Lords decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. The House of Lords decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. In Chester v. Afshar,2 the highest English court went further The claimant, Miss Chester, was going to have a surgery for her back pain. In Chester v Afshar, a doctor negligently failed to warn a patient of risks inherent in an operation, specifically cauda equina syndrome. Ms Duce made a claim against the respondent for damages relating to an operation performed at Worcester Royal Hospital on 25thMarch 2008 which aimed to relieve her of persistent period pain. Mrs C was very nervous about her surgery, later medical evidence suggests the possibility of spinal damage (which she … Duty to warn — Proof of causation necessary to establish liability — Whether effective cause of injury was the occurrence of a random risk or the Defendant's failure to bring the risk to the patient's attention — Arguments open to the Defendant in relation to the assessment of damages Chester v Afshar [2004] UKHL 41 is an important English tort law case regarding causation in a medical negligence context. Chester v Afshar [2004] UKHL 41; [2005] 1 A.C. 134; [2004] 3 W.L.R. Chester v Afshar Chester v Afshar Introduction In its decision in Chester v Afshar?1 a 3:2 majority of the House of Lords held that the scope of a doctor's duty to warn his patient of a non-negligible risk inherent in surgery extends to liability for personal injuries sustained … The case I will be reviewing is Chester v Afshar. However P was unable to prove that had she been told of the risk, she would not have undergone … Chester v Afshar (2004) English Medical Law ‘No Full Disclosure’ by Robert Burridge ‘But for’ causation and the principles of tort, while reminiscent of criminal procedure, can fall foul to policy loopholes when a duty of care is involved. He had not been warned of the risk, and sought damages. In addition, the judge at first instance also found that causation had not been established and the claimant appealed on the basis that Chester -v- Afshar applied. 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