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Collections under which this article appears: Other Neurology Neurosurgery Medicine and the law (incl forensic medicine)

BMJ 2002;324:1414 ( 15 June )
 

News roundup

Surgeon found liable for injuries because did not inform patient of risks

Clare Dyer legal correspondent, BMJ

An English court of appeal has ruled that a neurosurgeon who performed a microdiscectomy without warning the patient of the risks involved, was responsible for the patient's injuries even though the surgery was not negligently performed.

Giving the judgment of the court, Sir Denis Henry said: "The appeal raises important and difficult issues, not so far considered at appellate level in this country, of when a doctor should be held to have caused the injury the risk of which he failed to give proper warning to his patient."

Sir Denis, Lady Justice Hale, and Sir Christopher Slade dismissed an appeal by Farhad Afshar, a consultant neurosurgeon at the London Hospital, against a High Court decision that he was liable for injuries sustained by Carole Chester during an operation he performed in 1994.

Ms Chester, a journalist, saw Mr Afshar as a private patient at his Harley Street consulting rooms in London on a Friday afternoon in November 1994. Her referral letter from a consultant rheumatologist said she was averse to surgery, but after a 45 minute consultation she agreed to have the operation late on the following Monday afternoon.

She sustained damage to the cauda equina, the bundle of nerves in which the spinal cord ends.

Mr Afshar told the High Court that he had fully warned her of the risks. But Ms Chester said that Mr Afshar had played down the risks and had not mentioned nerve damage. She told the court she had mentioned hearing "horror stories" about back operations, to which the surgeon had replied: "Well, I haven’t crippled anyone yet," adding "Of course, you may be my first."

Expert witnesses gave evidence that nerve damage is a known risk of lumbar surgery and occurs in 1-2% of cases. Ms Chester’s expert witness described it as "the terror of neurosurgery."

The judge held that the operation was not negligently performed but that Mr Afshar was negligent in not properly informing Ms Chester of the risks. Had he done so, she would have sought second or even third opinions and would not have had the surgery when she did. Therefore, he was responsible for her injuries.

For the surgeon to be held liable, the appeal court had to decide whether Ms Chester needed to show that she would not have had a back operation at all had she known of the risks. The court, following Chappel v Hart, a 1998 case in the High Court of Australia, ruled that all she had to show was that she would not have had the operation when she did.

Ms Chester, who walks with a stick and a brace on her leg, has had to give up working as a travel writer, and is claiming £500 000 in damages. Mr Afshar’s solicitor, Mark Shaw, said he hoped the House of Lord would agree to hear an appeal.
 
 

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Collections under which this article appears: Other Neurology Neurosurgery Medicine and the law (incl forensic medicine)

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