Correia v University Hospital of North Staffordshire NHS Trust

The exceptional causation principle for failure to obtain informed consent is narrow. It applies where a surgeon negligently fails to warn of a particular operative risk and the injury is intimately connected with that duty to warn.

A negligent omission while performing an operation to which the patient gave informed consent does not, without more, negate that consent or transform the procedure into a different operation. Liability then depends on proving the ordinary elements of negligence, including causation.

A claimant relying on the exceptional principle must plead and prove the facts supporting it. An appellate court should interfere with a trial judge’s factual evaluation only where an identifiable error exists or the decision cannot reasonably be explained or justified.

The claimant underwent surgery for a recurrent neuroma in her right foot. The agreed procedure comprised exploration and neurolysis, excision of any neuroma, and relocation of the nerve ending. The surgeon negligently omitted the final stage. The claimant continued to experience neuropathic pain and developed chronic regional pain syndrome.

Following a liability trial, Mr Recorder McLoughlin in the Manchester County Court found that the operation had been performed negligently but that the negligence had not caused or contributed to the claimant’s pain. Judgment was given for the NHS trust on 6 March 2015.

The claimant appealed on two grounds. She argued that the omission invalidated her informed consent, bringing the claim within the exceptional causation principle in Chester v Afshar [2004] UKHL 41. She also challenged the recorder’s rejection of her expert evidence that a re-formed neuroma materially contributed to her pain.

1. The appeal was dismissed. Lord Justice Simon gave the judgment, with which Lady Justice Black agreed.

2. The ratio of Chester v Afshar [2004] UKHL 41 permits a narrow departure from conventional causation principles. Where there has been a negligent failure to warn of a particular operative risk, and the injury is intimately connected with that duty to warn, the injury may be treated in law as caused by the breach.

3. That principle did not apply. The claimant had consented to the appropriate three-stage procedure. The surgeon’s negligent omission of nerve relocation during the operation did not negate that consent, make the procedure a different operation for consent purposes, or require separate consent. It was negligent performance capable of attracting damages only if every element of negligence, including causation, was established.

4. The exceptional principle also required an adequate pleaded and evidential basis. Unlike the claimant in Chester, the claimant had not pleaded or testified that proper advice would have caused her to decline or defer surgery, or to choose another surgeon. The available evidence did not establish such a case.

5. An appellate court must exercise restraint before reversing factual findings. It may intervene for an identifiable error, including a material legal error, a finding without an evidential basis, a demonstrable misunderstanding or omission of relevant evidence, or a decision which cannot reasonably be explained or justified. A trial judge need not discuss every item of evidence, and is ordinarily presumed to have considered the evidence as a whole.

6. The recorder was entitled to reject the claimant’s expert evidence on causation and gave sufficient reasons. It was uncertain whether and where a neuroma had re-formed. Pre-existing nerve damage and neuropathic pain were not attributable to the negligent operation, while the chronic regional pain syndrome resulted from the surgery but not from its negligent performance. Those conditions also masked the source of the continuing pain. The claimant therefore failed to prove that omission of nerve relocation caused or materially contributed to her pain.

1. Court of Appeal (Civil Division): The claimant’s appeal was dismissed by the court in [2017] EWCA Civ 356. The finding that the operation was negligent remained undisturbed, but the recorder’s conclusions on informed consent and causation were upheld.

2. Manchester County Court: Mr Recorder McLoughlin gave judgment for the NHS trust on liability on 6 March 2015. He found that the surgeon had negligently omitted relocation of the nerve ending, but that the breach had not caused or contributed to the claimant’s pain.