TORT LAW
CASE Cassidy v Ministry of Health [1929]
Chester v Afshar [2003]
Montgomery v Lanarkshire Health Board [2015]
FACTS
PRINCIPLE
Cassidy had an operation on his hand which, through negligence, resulted in stiff fingers.
Medical professionals and authorities owe a duty of care to their patients – it is not necessary to establish precisely which employee of a hospital authority was negligent.
Chester was asked about the risks implicit in a surgery to correct back pain. The neurosurgeon omitted to mention the small risk of a certain complication. The neurosurgeon did not operate negligently, but the complication developed as a result. The patient would have gone ahead with the operation even if she had been warned but the court did not apply the “but for” test.
A rare, but severe, complication during the birth led to Mrs Montgomery’s child having severe disabilities. Had she known of the risk, she would have requested a less risky caesarean section.
1. When asked, a doctor is under an obligation to discuss any risk, no matter how small. 2. The neurosurgeon's failure to warn of the complication did not increase the risk, so conventional causation principles could not be satisfied. Causation was satisfied on policy grounds – unless the failure to warn was regarded as part of the chain of causation, the duty to warn would be hollow. This case is problematic. COMPARE with Montgomery and Duce. 1. The court overruled Sidaway on the size of risks that should be disclosed. A doctor is “under a duty to … ensure the patient is aware of any material risks”, where materiality is determined by whether a reasonable person in the patient's position would be likely to attach significance to the risk. Moving away from Bolam, it does not matter if a body of medical opinion would support not disclosing a risk. 2. The Chester approach on causation was not considered. OVERRULED Sidaway COMPARE with Bolam
R v Cambridge HA, ex parte B [1995]
The health authority stopped providing an expensive experimental treatment for a child dying of a rare leukaemia.
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The duty on health authorities is not absolute; they are not obliged to provide every possible treatment no matter the cost (although in this case they had not given due weight to the family's views).
