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Chester v Afshar CA

7 June 2002
The issues

Medical negligence – Duty to warn – Informed consent

The facts

Claimant had gone into hospital where an operation by a Neurosurgeon, the Defendant, was carried out. It was found as a fact by the Court below that the Neuro-Surgeon had not been negligent in the conduct of his operation. However, there had been in the ordinary event a slight risk of paralysis. The Claimant had not been warned of this risk. She had a fear of surgery. She raised the question of the Surgeon as to all the horror stories she had heard about surgery and had received what she regarded as an off-hand reply to the effect that “well I have never crippled anybody yet%u2026 you might be my first”. She gave evidence that had she known of the risks of surgery because of her fear of surgery generally, she would have had a second or even third opinion. Unfortunately, she did in fact suffer from paralysis as a consequence of the operation.

The decision

Doctors were obliged to give appropriate information to their patients so as to assist the patient in deciding whether or not to have any particular operation. A failure to inform did not mean that the patient’s consent was vitiated and that therefore the operation was an assault (Chatterton -v- Gerson). The claim was correctly brought in negligence rather than in trespass. If a Doctor failed to warn of these risks and the operation was one which, had she been warned she would not have consented to, and the very risk that he had failed to warn her about materialised and caused her injury, then the Doctor was rightly liable in negligence. Chappel -v- Hart followed.

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