Chester v. Afshar

Carole Ogilvy Chester made a claim of medical negligence against her surgeon Fari Afshar and sought damages.

Ms. Chester suffered from severe backaches for a considerable amount of time, and was referred to Dr. Afshar who was a renowned consultant neurosurgeon. Dr. Afshar advised her to go in for surgery, which she did. The surgery was performed accurately and as efficiently as possible by Dr. Afshar. However, the surgery carried an inherent risk of significant nerve damage in about 1-2% of cases. Dr. Afshar, despite performing the surgery successfully, could not avert this risk. Ms. Chester was therefore left partially paralyzed. She sought damages on the basis that had she been properly informed about the risks of the surgery she could have decided against the operation, or might have at least made other consultations before consenting to it.

The Court found that Dr. Afshar was liable to pay damages. It found that as a medical expert and Ms. Chester’s surgeon, Dr. Afshar had a duty of care towards his patient. He breached this duty by not informing her about the risks of surgery. It was irrelevant that the amount of harm caused would have been the same with or without his informing the Claimant of the risks. It was relevant only that full disclosure of the risks of the operation was not given to the patient. Dr. Afshar’s failure to disclose the full risks of the operation meant that Ms. Chester was not able to make a fully informed decision, and that her autonomous and informed consent had not truly been given. Dr. Afshar was therefore liable to pay damages to Ms. Chester.

“Standing back from the detailed arguments, I have come to the conclusion that, as a result of the surgeon's failure to warn the patient, she cannot be said to have given informed consent to the surgery in the full legal sense. Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles.” Para. 24.

“Thus the right to make the final decision and the duty of the doctor to inform the patient if the treatment may have special disadvantages or dangers go hand in hand. In this case there is no dispute that Mr. Afshar owed a duty to Miss Chester to inform her of the risks that were inherent in the proposed surgery, including the risk of paralysis. The duty was owed to her so that she could make her own decision as to whether or not she should undergo the particular course of surgery which he was proposing to carry out. That was the scope of the duty, the existence of which gave effect to her right to be informed before she consented to it. It was unaffected in its scope by the response which Miss Chester would have given had she been told of these risks.” Para. 55.