‘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. In this matter, the actions (or inactions) of a neurosurgeon left a patient paralysed and angry after full disclosure had not been established prior to her operation.
After suffering for a number of years with lower back pain, the respondent had reached the point that regular injections were no longer of relief, and had now given serious thought to surgical intervention, despite long standing fears around the field of operative medicine. Having consulted her rheumatologist at length, she was confidently advised to procure the services of a Harley Street practitioner with a solid reputation for the proposed kind of operation.
The recommended procedure involved delicate removal of a number of vertebrae that would by extension, bring an end to her pain, but not without associated risks inherent to the work. Upon her first visit with the appellant, the two individuals took time to discuss the course of action, along with the known side-effects and possible nerve damage. Having consented to undergo the surgery, the respondent was treated a few days following the meeting; after which her recovery was less positive than had been anticipated, and which had in fact left the respondent immobile and diagnosed with cauda equina syndrome.
Having sought damages for what the respondent considered to be negligence through a breach of duty to inform her of the known (and well documented) risks associated with the operation, the first judge found that in order to reach a balanced decision, it was important to address both the breach of duty to fully disclose, and the liability for the subsequent injury arising from the procedure. On this occasion, and relying upon the evidence presented, the court took time to debate the principal function of causation, in which the defendant is not required to establish exemption, but that the claimant must take the necessary steps to demonstrate how their breach caused either injury or loss, and that where adherence to policy and procedure had occurred, the results would have prevented any need for legal remedy.
With judgment found in favour of the respondent in the first hearing, the surgeon moved to appeal, before finding his challenge dismissed for the same reasons. It was then after granting permission to appeal to the House of Lords, that the finer details of causation and right to damages became of greater significance.
While the discussion revolved around similar medical cases applying tortious doctrines of causality, the named risk attached to lumbar stenosis removal ran within a very narrow margin of around one to two percent, and it had been proven as well as agreed, that irrespective of the performing surgeon, the potential for the syndrome remained equally viable. This translated that a lack of absolute disclosure by the appellant, while disconcerting in the immediate sense, could not be held as contributory to the injurious outcome experienced by the respondent.
However, the division between the House was such that enough case material had amassed to instigate a reconsideration of the logic of causality; and that when embracing the autonomous rights of the patient, it was simply unethical to allow minimal disclosure and a weakness of causative proximity to remove access to knowledge, which on this occasion might have led to alternative solutions to pain and discomfort. By then mindfully broadening the duty of care principle, the judges found (by a similarly narrow margin) in favour of the respondent and awarded accordingly, while holding that:
“In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.”