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The Problem of Never Saying Never: Case Comment on Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 - Lucile Taylor

23/07/18. Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 was the appeal of a surgical consent case. The Appellant had failed at first instance to establish that she would have either deferred or abandoned an operation had she been warned of a given risk as she contended she ought to have been.

The Appellant attempted to short circuit this problem by arguing that the decision in Chester v Afshar [2004] UKHL 41 suggested that there was no need for a claimant to prove this at all: in brief, a surgeon who negligently fails to warn a patient of a material risk of injury inherent in a proposed surgical operation, can be held liable following Chester if the very risk that the patient should have been warned about when they gave their consent to surgery, then materialises. [51; 81]

In unanimously rejecting this argument, the Court of Appeal gave a thorough exegesis of the decision in Chester. [48-71]The judgment of Lord Justice Leggatt commented more generally on the plight of a claimant who could not categorically say whether, if properly warned, they would have opted to undergo an operation at the time that they did, if at all, touching on issues of proof, policy and rights in consent cases. [81-92]

Facts [1-20]

The Appellant suffered from a history of painful and heavy periods. She sought medical advice in the hope of relieving the symptoms. After a number of consultations, she underwent a total abdominal hysterectomy and a bilateral salpingo-oophorectomy in 2008. The operation was performed non-negligently.

Following surgery, it became apparent that the Appellant had sustained nerve damage as a result of which she suffered from pain in her abdominal wall. She had developed what is now recognised as Chronic Post Surgical Pain. (“CPSP”)

The Appellant's original pleaded case was that the Respondent was negligent in failing to warn her of the risk of CPSP. Her case later 'evolved' to say that the Respondent had a duty to warn of neuropathic pain and 'some' chronic neuropathic pain. She argued that had she been warned that there was a risk of chronic or nerve pain, she would either have decided not to have the operation, had second thoughts, sought a second opinion, or at least put things off. [28]

Decision at Trial [21-28]

Joint expert reports at trial agreed that CPSP was not common knowledge amongst gynaecologists in 2008 and as such, would not normally be mentioned in taking consent for hysterectomy. The judge therefore found that there was no duty to warn of CPSP.

Similarly, on the basis of expert evidence, the understanding of chronic and neuropathic pain, whether short term or long term, by gynaecologists in 2008, did not justify the imposition of a duty to warn of those risks, nor did it follow from the Guidance published by the Royal College of Obstetricians and Gynaecologists.

The judge also found that the Appellant was well aware of alternative treatment on offer and that the operation would cause some pain. She had been warned of the risk of 3-6 months of numbness and/or pain, albeit without using words like chronic or neuropathic.

On causation, given that the Appellant knew the operation would cause her some pain; that a warning of 4-6 weeks of pain would not have put her off; that the operation might not relieve her abdominal pain; and that there were a number of other quite serious risks, it was found that it was more likely than not that the Appellant would still have proceeded with the operation on that day, even if there had been warning to the effect said to be required.

Grounds of Appeal [29]

The Appellant appealed on three grounds:

Ground 1...

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