For want of a nail a shoe was lost,
for want of a shoe a horse was lost,
for want of a horse a rider was lost,
for want of a rider an army was lost,
for want of an army a battle was lost,
for want of a battle the war was lost,
for want of the war the kingdom was lost,
and all for the want of a little horseshoe nail.
As "any fule kno" the test of causation in clinical negligence is the but for test (and material contribution, see past posts).
The test should not be applied too expansively - it should not be taken too literally: but for my negligent driving this morning, another motorist would not have been later for a GP appointment. If they had not been late the appointment would not have been re-arranged. But for the appointment being re-arranged they would have been diagnosed with a serious heart condition before the cardiac arrest ...
In fact I am not liable for the cardiac arrest even though, but for my negligence, it probably would not have occurred.
In Caparo v. Dickman, Lord Bridge said:
“It is never sufficient to ask simply whether A owed B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless”.
It is not within the scope of my duty of care as a motorist to prevent cardiac arrests suffered due to late diagnosis.
Is it within the scope of a surgeon's duty of care to prevent his or her patient from suffering a non-negligent complication of surgery? By non-negligent I mean a complication that has arisen notwithstanding proper performance of the surgery.
Where the "non-negligent" complication would probably have been avoided had the surgeon given proper advice about the proposed surgery, because the patient would have avoided the surgery in the light of that advice then, applying conventional principles, the surgeon is liable.
Chester v Afshar concerned a different situation. These are the opening words of the (minority) judgment of Lord Bingham in Chester v Afshar:
"The central question in this appeal is whether the conventional approach to causation in negligence actions should be varied where the claim is based on a doctor's negligent failure to warn a patient of a small but unavoidable risk of surgery when, following surgery performed with due care and skill, such risk eventuates but it is not shown that, if duly warned, the patient would not have undergone surgery with the same small but unavoidable risk of mishap. Is it relevant to the outcome of the claim to decide whether, duly warned, the patient probably would or probably would not have consented to undergo the surgery in question?"
The majority held that the conventional approach should be varied: As Lord Steyn concluded:
"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."
Thus the "but for" test would not have afforded a remedy to Miss Chester because she had not established she would have elected to avoid surgery. An exception to that rule of causation was carved out to vindicate the patient's right of autonomy.
In Crossman v St. George's Healthcare the Judge begins by distinguishing Chester v Afshar. The facts of Crossman were that a proper plan was agreed to manage the patient's neck condition conservatively for three months and then, if symptoms persisted, to proceed to surgery. Surgery involved a 0.5% risk of radicular nerve damage. Circumstances and negligent management conspired to bring the surgery forward, such that the period of conservative treatment was avoided.
It was agreed evidence that the conservative treatment would have been ineffective and that the surgery would have been undergone, with the same risk of radicular nerve damage (and other risks).
The surgery was properly performed but the Claimant suffered radicular nerve damage.
Thus, but for the negligence, the claimant would have undergone the same surgery but some three months later.
This is not a judgment about informed consent. It is about causation.
The judge discussed Chester v Afshar but held that it did not apply to the present case, which could be decided according the conventional principles. The risk of nerve damage was very small. It would therefore have been very small if, as should have happened, the surgery had been performed 3 months later. The Judge held that "Had [the claimant]had the operation on a different occasion, on the balance of probabilities the operation would have been successful." Accordingly the damage would have been avoided but for the defendant's negligence.
It seems to me that the Judge applied the "but for" test in its most "expansive" form. Too expansive an application allows for this argument from Lord Bingham in Chester: "But for your negligent misdelivery of my luggage, I should not have had to defer my passage to New York and embark on SS Titanic".
One question which might have been addressed in the judgment was whether the scope of the defendant's duty of care extended to protecting the claimant from the risk, or the materialisation of the risk of "non-negligent" nerve damage.
The occurrence of nerve damage was entirely co-incidental to the breach of duty. The timing of the operation was irrelevant to the exposure to the claimant of the risk of radicular nerve damage. Hence, arguably, it was not part of the defendant's duty of care to fix the timing of the operation in order to reduce the risk of, let alone to prevent, radicular nerve damage. The timing of the operation was within the scope of the duty of care only because it was necessary to give conservative treatment an opportunity to work. The injury that it was within the scope of the duty of care to prevent (in that respect) was for the claimant to undergo an avoidable operation. But, the evidence was that conservative treatment would have been ineffective and the surgery would have been performed even without the breach of duty. Thus that particular injury did not arise.
It would be surprising if this judgment were not subject to further scrutiny. After all, there must be very many instances where administrative or clinical negligence has led to the timing of an operation being altered. Is the NHS going to be liable every time a non-negligent injury arises from an operation that ought to have been performed on a different date or at a different time?