Diamond v Royal Devon & Exeter NHS Foundation Trust

A clinician who is told of significant post-operative symptoms must investigate them where competent medical practice requires examination. Causation is established where, on the balance of probabilities, the omission materially delays treatment and causes additional suffering.

For informed consent, the patient must be told of material risks and reasonable alternative treatments. A negligent failure to provide that information does not, without consequential loss, create a free-standing claim for damages. The claimant must ordinarily prove that the injury would not have occurred absent the breach. The exceptional approach in Chester v Afshar is narrow and fact-sensitive.

The claimant brought a clinical negligence claim arising from spinal fusion surgery and subsequent repair of an incisional hernia. She alleged that the defendant’s spinal surgeon failed to examine her abdomen when she reported post-operative swelling, and that the general surgeon failed to obtain informed consent before undertaking a mesh repair.

The court found a breach in relation to the failure to examine the abdomen and held that it delayed diagnosis and surgery by approximately two months. It also found breaches in the counselling process because the claimant was not warned of pregnancy-related risks associated with mesh or told that primary suture repair was an alternative. The central issues were whether either breach caused recoverable loss and whether a failure to warn could itself support damages.

1. First issue: examination and causation. The claimant had reported abdominal swelling at the six-week review. In those circumstances, the surgeon should have examined her abdomen. The failure to do so was a breach of duty. On the balance of probabilities, an ultrasound, referral and treatment would have occurred earlier, and surgery would have taken place approximately two months sooner. The claimant was awarded £7,500 for the additional pain, suffering and loss of amenity.
2. Second issue: informed consent. The claimant should have been told of the possible effects of an abdominal mesh on a future pregnancy, including restricted uterine growth, possible difficulty with caesarean access and disruption of the mesh or abdominal wall after pregnancy. She should also have been told that primary suture repair was possible, even though its failure risk was high. These conclusions were consistent with the principle stated in Montgomery v Lanarkshire Health Board [2015] 2 WLR 162.
3. The counterfactual advice would have been within the range of advice given by reasonably competent surgeons. On the evidence, the claimant would nevertheless have chosen mesh repair. Accordingly, the breach caused no consequential loss.
4. Causation and Chester. Chester v Afshar [2005] 1 AC 134 permits only a modest departure from ordinary causation principles in its unusual circumstances. It did not apply where the claimant would have undergone the same operation after proper counselling. A negligent failure to warn, without more, does not create a free-standing remedy. The alleged later shock and psychiatric worsening were also too remote, and shock alone did not sound in damages.