Whilst there was much legal excitement following the House of Lords decision in Chester-v-Afshar, with some believing that it heralded a sea-change in causation in informed consent cases, it now looks increasingly like a judgment which will not have wider application in clinical negligence cases, although some of the statements of principle concerning a move from paternalism to autonomy are very important.
The Judge in Less-v-Hussain encountered the difficulty that, of necessity, arises in all cases where a claimant alleges that but for negligent advice they would have taken a different course from the one which in fact caused them injury or loss. The difficulty is that the claimant, who now knows what it is like to experience the injury or loss, has to establish what they would have chosen to do when not knowing the actual outcome of that decision (the delivery of a disabled child, the post-operative complication of infection leading to the limb amputation ...). Understandably the defendant will contend that the claimant's evidence is given through the "retrospectoscope". It is the knowledge, now, of what it is like to have a disabled child, or to lose a limb, which leads the claimant to say that they would have chosen a course which would have avoided such consequences. It does not follow that, they would not have accepted the risk of that consequence in advance of knowing the outcome of their decision.
How can a claimant overcome the suspicion that retrospect is governing their evidence? Some relevant factors might include the following:
Generally patients do not know what it would be like to experience the complications of surgery or to have a disabled child, but in some cases they might have had direct or indirect experience. If so, then the knowledge, say, of how their cousin has struggled to cope with a leg amputation might have informed their decision about taking a 2% risk of such an outcome.
If the advice about risk had been given, what questions would they have asked their clinician or surgeon concerning the risk? What further advice would they have then been given? How would the surgeon or clinician have communicated that further information?
What evidence is there of how risk averse the claimant was generally?
What were the family dynamics and pressures at the time?
Who else might have influenced their decision? Evidence from their partner, parents, children or siblings might be relevant.
What was the claimant's financial or work situation at the time? I had a client who was not advised of a material risk of an outcome to a procedure which would have prevented him from working in the building trade. The procedure he underwent was to alleviate a nuisance symptom. Had he been advised of a small risk of an outcome which would have put an end to his career then, he said credibly, he would not have gone ahead with the operation.
Were there cultural or religious reasons why the claimant would or would not have taken into account the risk or, for example, decided to terminate the pregnancy?
Are there statistics showing what proportion of parents, say, choose to terminate a pregnancy on being told of a particular fetal abnormality? Can the expert witnesses say what most patients choose to do on receiving the advice which was negligently omittetd in the particular case?