An Essay on Clinical Negligence “We have always thought of causation as a logical, almost mathematical business. To intrude policy into causation is like saying that two plus two does not equal to four because, for policy reasons, it should not. ” (Charles Foster NLJ 5/11/2004 page 1644). To what extent do you consider that Charles Foster is correct in that causation and clinical negligence should be a “mathematical business” and the courts have, by introducing matters of policy, confused what should be a logical approach?
Introduction: In the article of “It should be, therefore it is”1, its author, Charles Foster examined the surprise House of Lords judgment in Chester v Afshar2, what he described as “an exercise in legal creativity that abolishes the requirement for causation in any meaningful sense. ” To discuss the above issue, one must consider the legal requirements of clinical negligence.
In order for a patient to succeed in a claim for clinical negligence against his doctor, he must be able to satisfy three requirements: first, he must establish that a duty of care was owed by the doctor or hospital to himself; second, he must prove that the doctor has breached that duty of care by failing to reach the standard of care required by the law; lastly, the patient must prove that his injury was caused by the doctor’s negligent act. Each of these requirements for negligence will be considered as the strict requirements for a successful claim of the patient suffering from an adverse event in a medical context.
These steps were referred by Charles Foster as the logical “mathematical business” 3towards establishing the causation in a clinical negligence case. Is Chester’s case a relaxation of the causation requirements? To discuss this statement, one must consider whether the breach of duty causes the harm to the patient. Even if a doctor breaches his duty of care by falling below the standard of care, a patient can only recover his damages if he can prove that breach has caused some harm to him. 1. “It Should Be, Therefore It is” (2004) 154 New Law Journal 7151. 2.  UKHL 41. 3. Charles Foster New Law Journal 5/11/2004, p. 644. If the doctor breaches his duty of care, but the patient suffered no injury, or would have suffered an identical harm regardless of the doctor’s failing, then the doctor is not proven negligent. This can be illustrated by the case of Barnett v Chelsea and Kensington Hospital Management Committee4. In this case, the doctor has breached his duty of care to the deceased man by not examining him personally, but the action for clinical negligence failed, because even if the patient had been seen by the doctor, the arsenic poisoning was regarded as too far advanced for an antidote to be life-saving.
In other words, by the time the patient arrived at the hospital, he was destined to die irrespective of the actions or negligent omissions of the doctors. Although his doctor failed to meet the requisite standard pf care in treating him, this did not in itself cause any harm to the patient. 4. There are two ways of interpreting this causation requirement. On the one hand, there exists a reasonable principle that a person should not be held liable for damage which he did not cause.
On the other hand, there is no legal evidence for incompetent medical care unless the patient can prove that the doctor’s action indeed caused some identifiable harm. The particular patient is Barnett should have been attended by a doctor, but the fact that he was not subject to compensation. In recent years, the English legal system has recognized that a very strict application of the causation requirement can result in injustice for the patient and therefore there have been gradual moves towards a relaxation of this requirement.
In Bolitho v City & Hackney Health Authority5, for instance, a strict application of the traditional causation test of “but for” – that is the harm would not have been caused but for the doctor’s clinical negligence- was self-evidently not satisfied. It could be recalled in this case the doctor failed to attend the patient but argued that, if she had indeed attended, she would not have provided the treatment (intubation) which could have save the child. Therefore, it is crystal clear that the harm of the child’s death would have occurred even if the doctor had met her duty of care by attending the patient.
Despite the court was not willing to settle for this conclusion and instead enquired into whether the doctor’s intended failure to intubate if she had attended would have been clinically negligent in itself. This implies that it was considered by the court at all is an indication that, if some serious harm has occurred, the courts will take into considerations the entire circumstances of the case before coming to the conclusion as to whether the causation requirement has been satisfied. 4.  1 A11 ER 1068. 5.  UKHL 46, HL.
The approach can be seen even more controversially in the 2004 case of Chester v Afshar6, which Charles Foster has made his comment on as mentioned. This case involved a doctor’s clinical negligent failure to warn a patient about the risk inherent in a medical procedure. There exists a need for the patient’s consent to medical treatment to be fully informed. The complication with respect to causation arose because the patient admitted that she would have still undergone the surgery even if she had been warned about the risks of paralysis which unfortunately materialized during the medical procedure.
Therefore, the doctor’s failure to disclose this risk, although a breach of his duty of care, did not on the strict application of the causation requirement, cause the harm suffered by the patient. When Chester reached the House of Lords, the House was divided on the issue of causation. The Court of Appeal, taking a strong and pragmatic approach, held that the claimant could succeed by applying conventional causation principle. Therefore it could be said that the claimant’s injury had resulted from receiving a particular operation at a particular time.
If the defendant had warned her about the risks, she would not have that particular operation- she would have had an operation (with the same risks) at a later date. If she had had this later operation, in all probability, the very small risk of disability would not have happened. On this basis, it could be said that the defendant’s failure to warn had led to the claimant’s disability. However, the House of Lords did not find this kind of approach attractive. As Lord Hoffman put it, the approach of the Court of Appeal was: …about as logical as saying that if one had been told, on entering a casino, the odds on the number 7 coming up were only 1 in 37, one would have gone away and come back next week or gone to a different casino. The question is whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some irrelevant detail. ”7 In the House of Lords, both the majority and minority rejected reasoning of the Court of Appeal and held that the claimant could not succeed in proving causation on conventional principles.
For the minority (Lord Hoffman and Bingham), this was sufficient to dispose the case. However, the majority went on to state that, for policy reasons, the traditional rules of causation ought to be relaxed to allow the claimant to 6.  UKHL 41 7.  1 AC 134, per Lord Hoffman, at paragraph 31. succeed. Central to their Lordship’s reasoning was the need to give effect to the right of a patient to make an informed choice about whether and when to undergo medical treatment. In law, this right was made possible by a doctor’s duty to warn the patient about any significant risks involved in the medical treatment.
There would therefore be injustice if breach of this duty did not lead to a remedy. If the doctor were not made liable for such a breach, the duty to inform the patient about significant risks would, as Lord Hope put it, be a “hollow one”. His Lordship said: “The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfill the only purpose which brought it into existence.
On policy grounds therefore I would hold that the test of causation is satisfied in this case. ”8 Lord Steyn shared this view that the vindication of the patient’s rights was the overriding considerations: “Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles…This result is in accord with one of the most basic aspirations of the law, namely to right wrongs. ”9 On policy grounds, therefore, Lord Hope, Steyn and Walker held that the test of even though they agreed with Lord Bingham and Hoffman that this required a departure from the traditional principles.
The simple fact that the patient’s injury was “intimately involved with the duty to warn”10 was sufficient for Lord Hope, while Lord Walker emphasized that the doctor had failed in his professional duty and the patient “has suffered injury directly within the scope and focus of that duty”. 11 In summary, the two dissenting Lords emphasized that Miss Chester had failed to prove that the doctor caused her injury. Lord Bingham said that “she cannot show that the clinical negligence proved against Mr. Afshar was, in any ordinary sense, a cause of her loss”12 and Lord Hoffman noted that “on ordinary principles of tort law the 8. 2005] 1 AC 134, per Lord Hope, at paragraph 87. 9.  4 A11 ER 587, per Lord Steyn, paragraph 24-25. 10.  4 A11 ER 587, per Lord Hope, paragraph 87. 11.  4 A11 ER 587, per Lord Walker, paragraph 101. 12.  UKHL 41, per Lord Bingham, paragraph 9. defendant is not liable”. 13 Both of these judges therefore held that Miss Chester could not recover damages with respect to Mr. Afshar’s negligent disclosure. Even the judges in the majority acknowledged that the traditional causation requirement had not been satisfied in this case.
Lord Hope, for instance, who gave the leading judgment, accepted that “a solution to this problem which is in Miss Chester’s favour cannot be based on conventional causation principles”. 14 The majority allowed Miss Chester to recover damage based on some vague policy reasons. Lord Hope elaborated that the key question for the House of Lords was “whether in the unusual circumstances of this case, justice requires the normal approach to causation to be modified”. 15 Lord Hope further explained that “the function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached.
Unless this is done, the duty is a hollow one, stripped of all practical force and devoid of all content”. 16 Lord Steyn shared this view that the vindication of the patient’s rights was the overriding consideration: “Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles…This result is in accord with one of the most basic aspirations of the law, namely to right wrongs. ”17 As a result, the consequence is that where there is a breach of duty to disclose and the plaintiff suffers from . he actual harm he or she should have been warned about, then a claim for damages is more likely to succeed. The patient would recover if they would have deferred the procedure. The plaintiff no longer have to demonstrate that he or she would have refused the procedure completely if he or she had been told about the undisclosed risk. The adaptation of the causation requirement in Chester v Afshar has been the subject of considerable debate and criticism. Green18, for example, argues that the law of torts “is concerned not with compensating those who have suffered loss as a result of the defendant’s breach of duty”.
This very point is emphasized by Lord Bingham in his dissent when he argues that “a claimant is not entitled to be compensated, and a defendant is not bound to compensate the claimant, for damage not caused by the negligence complained of”. 19 To some extent this is a convincing argument. 13.  UKHL 41, per Lord Hoffman, paragraph 32. 14.  UKHL 41, per Lord Hope, paragraph 81. 15.  4 A11 ER 587, per Lord Hope, paragraph 85. 16.  4 A11 ER 587, per Lord Hope, paragraph 87. 17.  4 A11 ER 587, per Lord Steyn, paragraph 75. 18.
Sarah Green, “Coherence of Medical Negligence Cases: A Game of Doctors and Purses”. (2006) 14 Med Law Rev. 1, p. 4. 19. Chester v Afshar  4 A11 ER 587, paragraph 9. Miss Chester was awarded full damages for the injury she suffered even though this injury was not really caused by the doctor’s actions, which seems unjust. However, the point which is missed here is that the doctor’s negligent non-disclosure did cause a different loss to Miss Chester. Green20 argues that Miss Chester “lost nothing of value”, but I believe this is not true: she lost her right to make an autonomous choice about her medical treatment.
In daily clinical practice, autonomy with respect to healthcare requires that a patient is fully informed about the medical treatment before he or she can consent to it. On the other hand, the right to refuse consent to medical treatment, which is protected in both English common law and international human right law, requires that an informed choice be made by the patient. In Miss Chester’s case, she was denied of this particular right. She agreed to undergo the surgery in ignorance of its risks and true nature. Her right to autonomy was therefore denied.
Green’s opposing view can be explained as follows: “A patient’s dignity and right to decide is protected by the law of tort’s recognition that a doctor has a duty to warn, not by the readiness to override causal considerations in the claimant’s favour. If a breach of that duty to warn causes the patient no loss, then a finding of no liability does not violate that right. It merely serves as an acknowledgment that the patient’s inability to exercise that right did not, on this occasion, causes any harm”. 21 A fundamentally different viewpoint of this situation is taken here.
The inability to exercise a right to autonomy is regarded as a harm in itself, regardless of the actual physical injury resulted. This rights-based approach means that Mason and Brodie22 are correct to regard the award of full damages to Miss Chester as inconsistent with the House of Lords’ modified approach to causation as follows: “One can understand the concern to allow the plaintiff to vindicate her rights. However, the measure of damages allowed does not, in truth, reflect the loss suffered because, at the end of the day, the loss lay in an invasion of autonomy per se, and an award of full damages can be said to over-compensate. 23 20. Sarah Green, “Coherence of Medical Negligence Cases: A Game of Doctors and Purses”. (2006) 14 Med Law Rev. 1, p. 14. 21. Sarah Green, “Coherence of Medical Negligence Cases: A Game of Doctors and Purses”. (2006) 14 Med Law Rev. 1, p. 9-10. 22. K Mason and D Brodie, “Bolam, Bolam- Wherefore Are Thou Bolam? ” (2005) 9 Edin LR298, p. 305. 23. K Mason and D Brodie, “Bolam, Bolam- Wherefore Are Thou Bolam? ” (2005) 9 Edin LR298, p. 305. The House of Lords judgment in Chester v Afshar represents a significant departure from the traditional requirements of a negligence action.
It is an imperfect the emphasis upon vindication of the patient’s rights is insufficiently explained and justified. But it is also encouraging from a human rights perspective to see this judicial recognition at the highest level that causation requirements should not act as a barrier to recovery where a patient’s rights have been infringed during the provision of medical care. Manson and Laurie24 refer to a trend to “assist the plaintiff over the causation hurdle in medico-legal cases”25 and, given the great hurdle still in place with respect to proving a breach of the duty of care, this should in general be welcome.
Andrew Grubb26 argues that the majority in Chester made the right decision: “It is difficult to argue with [the majority’s] reasoning. It would undermine the rule and be unjust for a doctor to require a patient to show that she would never have a particular procedure in the future. It is also counterintuitive to think that because the patient may run the risk in the future- by agreeing to and having the procedure- the negligence is not connected to her injury. At worst, she will be exposed to a small risk of injury which is unlikely then to eventuate.
She had in a real and immediate sense suffered injury that she would not otherwise have suffered. That should be sufficient to establish a causal link”. 27 If Miss Chester‘s loss is better described as the loss of the right to make an informed consent, rather than exposure to a risk which she would have avoided if given proper information, it could be argued that damages should be directed towards compensating her for this deprivation of autonomy, rather than for the physical injury she suffered.
It is interesting that the majority in Chester did not consider the possibility of making a “conventional award” as they had done in Rees v Darlington memorial NHS Trust28, for the patient’s loss of autonomy. The majority awarded Miss Chester full damages for physical injury, despite the fact that their judgments describe the real loss in this case as the deprivation of the right to make an informed choice. As 24. JK Mason, A McCall Smith & G Laurie, Law and Medical Ethics, 7th edit, (Oxford, Oxford University Press, 2006), p. 39. 25. JK Mason, A McCall Smith & G Laurie, Law and Medical Ethics, 7th edit, (Oxford, Oxford University Press, 2006), p. 339. 26. “Consent to Treatment: The Competent Patient”, 31-203 in A Grubb with J Laing(eds), Principles of Medical Law, 2nd edition, (Oxford, Oxford University Press, 2004), p. 200. 27. “Consent to Treatment: The Competent Patient”, 31-203 in A Grubb with J Laing(eds), Principles of Medical Law, 2nd edition, (Oxford, Oxford University Press, 2004), p. 200. 28.  UKHL 52.
J Kenyon Mason and Douglas Brodie29 point out, this may mean that Miss Chester was over-compensated: “However, the measure of damages allowed does not, in truth, reflect the loss suffered because, at the end of the day, the loss lay in an invasion of autonomy per se, and an award of full damages can be said to over-compensate. What is, in some ways, surprising is that, the solution adopted in Rees v Darlington Memorial NHS Trust was not applied here. There, the requirements of distributive justice meant that damages should not be awarded to compensate the plaintiff for the loss that ad arisen as the result of a failed sterilization operation…The solution adopted was to award a “modest” conventional sum by way of general damages to acknowledge the infringement of the plaintiff’s autonomy by the fault of the defendant”. 30 The possibility of a conventional award was mentioned by Lord Hoffman, in his dissenting judgment: ”I can see that there might be a case for a modest solatium. ”31 In the end, he rejects this solution for two reasons: it would be difficult to settle on an appropriate amount, and on the grounds of costs, the courts would be an unsuitable place to pursue what would always be a modest award.
Effectively, then, the consequence of Chester’s case is that autonomy-based right to make an informed consent is so important that doctors who fail to warn patients about material risks associated with treatment may have to indemnify patients should those risks materialize, despite the exercise of all proper skill and care in carrying out the operation, and critically, despite the fact that the patient admits that they would have been prepared, in fact, to knowingly run this risk on another occasion. Difficulty in proving causation:
The full impact of the House of Lords’ relaxation of causation principles in Chester v Afshar remains to be seen. There are a number of reasons why the causation requirement raises particular difficulties in actions for negligence non-disclosure of relevant information. 29. “Bolam, Bolam- Wherefore Are Thou Bolam? ” (2005) 9 Edin Law Rev. p. 298-305. 30. “Bolam, Bolam- Wherefore Are Thou Bolam? ” (2005) 9 Edin Law Rev. p. 298-305. 31.  UKHL 4, per Lord Hoffman, paragraph 34. 32. “A warning about causation” (1999) 115 Law Quarterly Rev. 1-27, p. 23. 33. “From Informed Consent to Patient Choice: A New Protected Interest” (1985) 95 Yale Law Journal 219. 34. “From Informed Consent to Patient Choice: A New Protected Interest” (1985) 95 Yale Law Journal 219. First, a successful claim in negligence for failure to disclose a material risk is in practice synonymous with strict liability for medical mishaps. Informed consent therefore becomes a route for patients to seek financial compensation for unfortunate but blameless medical outcomes.
Doctors who exercised all reasonable care and skill in performance of an operation will be found liable for the consequences of an accident which they could have done nothing to prevent just because their pre-operation disclosures were inadequate. As Peter Cane32 explains, “ whatever the ideological basis of the duty to warn (or, in other words, the interest which it protects), its importance in practice lies in providing a basis for imposing liability for physical injury not caused by clinical negligence”.
Secondly, because the claimant must prove that the inadequate disclosure caused her injury, cases only come before the courts where the patient has not been informed about the risk of an adverse outcome which has then materialized. Adequate information is not, however, confined to disclosure of risks. In order to exercise meaningful choice, it is important that the patients are told about alternatives to the proposed treatment. As Marjorie Maguire Shultz33 explains, negligently depriving the patient of choices will rarely result in the sort of damage or injury which is recognized in tort law: [P]reemption of patients’ authority by doctors may also give rise to injuries that are real but intangible, or to physical outcomes that are arguably not “injurious” except from the individual’s vantage point. These outcomes may be excluded from negligence doctrine’s definitions of harm. Thus, a patient not told about a method of sterilization that is more reversible than the one performed may have difficulty convincing the court that non-reversibility is a cognizable physical injury.
A patient who alleges that, properly informed, she would have chosen a lumpectomy rather than a radical mastectomy might find it hard, under existing negligence rules, to characterize the successful operation that removed her breast and eradicated her cancer as having “injured” her. Similarly, the patient with a desire to go home or to a hospice to die, who is instead maintained alive by hospital machinery, might have difficulty establishing “injury” under definitions of an interest in physical well-being rather than choice”. 34
Thirdly, “ cause” appears to have acquired a rather special meaning in failure to warn cases, Peter Cane has explained, the doctors in these cases rarely “caused” the injury in question “in the central sense of the word “cause” as it is used outside the law”, because “failure to warn of a risk does not “cause “ the materialization of the risk”. Rather the injury has usually been caused by an unfortunate and inherently unlikely combination of circumstances, and the doctor simply created the situation in which this extraordinary sequence of events could occur.
The question of whether a doctor should be liable for a failure to disclose a risk is more accurately stated as whether she should be liable for creating the situation in which an accidental injury might or might not occur. Conclusion: There is an elegance to a legal structure that requires doctors to owe a “single comprehensive duty” in negligence covering diagnosis and treatment, and the associated obligations to inform. Diagnosis and treatment are essentially the exercise of the medical professional skills and therefore fall fairly into the arms of negligence.
The duty to inform, however, seeks to protect the patient interest in self-determination. This seems more fairly addressed by an action that is complete with the injury to the interest protected. Such an action would be more akin to an action in battery. The fact that legal action for inadvertent misinformation in relation to the inherent risks/benefits of treatment lies in negligence rather than in battery leaves a legal structure that has some tension within in it.
Where battery, constrained as it is by touching, is an ill-fitting robe negligence barely covers the mischief. In English law, negligence actions for negligent misinformation have seen this tension expressed as a strong dissent by Lord Scarmen in the case of Sidaway v Bethlem Royal Hospital Governors35, and then as a weakening of the causation rule in Chester v Afshar. Notice how weakening the causation rule in Chester v Afshar.
Notice how weakening the causation requirement makes the action of clinical negligence more akin to a battery action- the very action precluded by the rule in Reibl v Hughes in such cases. In Chester v Afshar, the plaintiff would have had the operation at a different time and so something would have changed had the information about risk been given. The core of the principle in this case comes when the plaintiff does not change anything as a result of the misinformation.
Can they still succeed where they suffer the very harm they should have been worried about? If so, we have a clinical negligence action that looks suspiciously like a battery action but protects the interest of self-determination. The use of clinical negligence in this context has arisen by default. The structure of a claim in clinical negligence is simply the wrong one to protect a fundamental interest like self-determination and the strain is telling.