Duce v Worcestershire Acute Hospitals NHS Trust

A clinician’s duty to warn involves two questions. First, what risks were or should reasonably have been known to the clinician is a matter of medical expertise. Secondly, whether a known risk was material and should have been disclosed is for the court, applying a patient-centred standard rather than the Bolam test.

The exceptional causation principle in failure-to-warn cases still requires factual causation. The claimant must prove that, if properly warned, the operation would not have taken place when it did. The occurrence of the very risk which should have been disclosed does not, without that proof, establish liability.

The appellant underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy at the respondent’s hospital. The operation was performed without negligence, but caused nerve damage and serious permanent chronic post-surgical pain. She claimed that she had not received an adequate warning about the risk of pain.

Following a four-day trial, the County Court at Birmingham dismissed the claim. It found that gynaecologists could not reasonably have been expected to know of the alleged risk in 2008 and that, even if the proposed warning had been given, the appellant would still have undergone the operation on the same day.

The appeal concerned whether the judge had applied the patient-centred disclosure standard in Montgomery, whether Chester provided a free-standing route to causation, and whether the factual finding on causation could stand.

1. Appeal dismissed unanimously. The judge had applied the correct approach to disclosure of medical risks. Montgomery v Lanarkshire Health Board [2015] UKSC 11 establishes a two-stage inquiry. The identification of risks which were or should have been known to the clinician is a matter of medical expertise. Whether a known risk was material and should have been disclosed is a question for the court, applying the patient-centred standard of materiality rather than the Bolam test.

2. The claim failed at the first stage. The judge found that, in 2008, there was insufficient understanding among gynaecologists of chronic or neuropathic pain, whether long- or short-term, to require a warning. That finding was consistent with the expert evidence. A clinician is not required to warn of a risk of which the clinician cannot reasonably be taken to be aware. It was therefore unnecessary to determine materiality.

3. Chester v Afshar [2004] UKHL 41 does not establish a free-standing causation test satisfied merely because the injury was the very risk about which a warning should have been given. The majority’s reasoning depended on factual, or “but for”, causation: if warned, the claimant would not have undergone the operation when she did. Chester exceptionally treated that bare factual cause as sufficient in law, despite its not being an effective cause in the ordinary sense, because of the close connection between the warning duty and the injury.

4. The present appellant had to plead and prove that an adequate warning would have caused her to defer the operation. The trial judge was entitled to find that she would have proceeded on the same day. She had repeatedly declined less invasive alternatives, knew that the procedure was major surgery carrying serious risks, and remained determined to undergo it. The evidence amply supported the finding.

5. Leggatt LJ agreed. He added that Chester remains problematic and may warrant reconsideration by the Supreme Court. It could not reasonably be extended to a case where the claimant would have proceeded with the operation as and when she did. A separate award for invasion of patient autonomy was also unavailable following Shaw v Kovac [2017] EWCA Civ 1028.

1. Court of Appeal (Civil Division): By [2018] EWCA Civ 1307, unanimously dismissed the appeal on breach of duty and causation.
2. County Court at Birmingham: HHJ Worster dismissed the negligence claim, finding both that the respondent had not breached its duty to warn and that causation had not been established. No neutral citation is stated.