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Crossman v St George’s Healthcare NHS Trust  and the ‘but for’ test of causation.
In the well known House of Lords decision in Chester v Afshar  a surgeon (Mr Afshar) failed to warn his patient, Miss Chester of the small (1-2%) but unavoidable risk of developing cauda equina syndrome as a result of the spinal surgery that he advised should be undertaken.
Whilst the surgery was carried out to a reasonable standard Miss Chester subsequently suffered from the rare complication of which she had not been warned.
The failure to warn of this complication was a breach of duty.
As a matter of fact it was held that, even if duly warned, Miss Chester would still have undergone the surgery, albeit at a later date than in fact occurred. Accordingly, the claim could not succeed on traditional ‘but for’ principles of causation because Miss Chester could not establish that but for the failure to warn she would not have undergone the surgery.
What she established was that but for the failure to warn she would not have consented to surgery on the day that it took place. However, the timing of the operation was irrelevant to the injury she suffered and for which she claimed to be compensated. That injury would have been as likely to occur whenever the surgery was performed and regardless of who performed it.
The question therefore arose as to whether Miss Chester should be entitled to recover damages even though she could not show that the negligence proved against Mr Afshar was (in the conventional sense), a cause of her loss.
The House of Lords (by a majority of 3:2) held that in these circumstances a modification of traditional causation principles was justified on ‘policy grounds’. It was a basic principle of good medical practice that patients should consent to surgery on a fully informed basis, aware of all the risks. Mr Afshar had therefore violated Miss Chester’s right to choose. If damages were not awarded, that duty would be a ‘hollow’ one.
Crossman v St George’s Healthcare NHS Trust
In November 2016 HHJ Peter Hughes QC (sitting as a Deputy High Court Judge) handed down Judgment in the case of Crossman v St George’s Healthcare NHS Trust.
In this case Mr Crossman had began to suffer symptoms of numbness and pain in his arm and neck. An MRI scan revealed degenerative changes in Mr Crossman’s cervical spine. Various management options were discussed in the light of the MRI scan and Mr Crossman’s clinical presentation, including surgery. The potential risks and benefits of surgery were discussed. However, at that stage conservative treatment including physiotherapy was recommended with a review to take place in three months’ time.
Despite this, immediately following his appointment Mr Crossman was put on the waiting list for surgery and no further outpatient appointment was arranged.
A few weeks later Mr Crossman received two letters from the Hospital. One asked him to attend for a pre-operative assessment and the other informed him that the Hospital wished to admit him to a ward on 10th April 2011 with a view to carrying out surgery the following day. He contacted the Hospital believing that there had been a mistake and was told that unless he kept his appointment he would be put to the back of the list.
Mr Crossman duly attended his pre-operative assessment and, on 11th April 2011 he underwent surgery.
Unfortunately, although the operation appeared to go well at the time, and there was no suggestion that it was carried out negligently, Mr Crossman suffered a radicular nerve root injury.
The Parties’ expert witnesses agreed that the risk of this complication as a result of the operation was less than 1% and was probably in the order of 0.5%. It was further agreed that, if the management plan had been followed as intended, Mr Crossman would have had the same surgery, albeit three months’ later and that the level of risk would have been the same then as it was in April 2011.
It was accepted that it was negligent to have failed to have followed the plan for conservative treatment and physiotherapy prior to undertaking surgery.
Mr Crossman’s case was that but for the Hospital’s negligence he would not have undergone the operation when he did and that he was entitled to compensation either on conventional causation principles or on the basis of the House of Lords decision in Chester v Afshar.
The Judge held that Mr Crossman had succeeded in his case on causation on conventional ‘but for’ causation grounds.
But did he?
The Judge stated: –
“The fact that things went wrong this time is no predictor of things going wrong on any other occasion; indeed, because the risks are so low, it almost certainly would not go wrong on a different occasion. In other words, the Claimant was unlucky and, as the risks were so low, would probably have not been unlucky had the operation been performed as originally planned in three months’ time.”
“In summary, Mr Crossman was unlucky. Had he had the operation on a different occasion, on the balance of probabilities the operation would have been successful.”
The Judge then discussed whether Mr Crossman would have succeeded on Chester v Afshar grounds had he not found for him on conventional grounds. The Judge considered that the decision in Chester was one arising out of policy grounds concerning patient autonomy in consent cases describing the extension of conventional causation principles as “exceptional and limited”.
However, the Judge did not explain how the principle in Chester differed from that which he used to determine causation on conventional grounds.
In fact, the Judge appears to have found for Mr Crossman precisely on Chester v Afshar grounds despite saying that he didn’t!
In this regard, it is difficult to see how Mr Crossman was able to succeed on traditional ‘but for’ causation principles when in Chester the House of Lords found that in order to succeed a departure from conventional principles was required on very similar facts.
For example, the risk of the injury to Mr Crossman would still have been the same had his surgery been performed at a later date and regardless of whom carried out the operation. If Miss Chester was not able to succeed on conventional grounds it is difficult to see how Mr Crossman could.
In Chester Lord Hope said this: –
“It is not in doubt that a patient who claims that she has suffered injury as the result of a doctor’s failure to inform her of the risk of injury must show that the damage was caused by the doctor’s breach of duty. In this respect the present action is no different from any action that is brought in negligence. But how can causation be established when, as in this case, the patient would not have refused absolutely there and then and for ever to undergo the operation if told of the risks but would have postponed her decision until later?
The problem is rendered all the more acute in this case by the fact that the failure to warn cannot be said in any way to have increased the risk of injury. The risk was inherent in the operation itself…The evidence indicated that it was also liable to occur at random, irrespective of the degree of care and skill with which the operation was conducted by the surgeon. This means that the risk would have been the same whenever and at whoever’s hands she had the operation. It can be said that Miss Chester would not have suffered her injury “but for” Mr Afshar’s failure to warn her of the risks, as she would have declined to be operated on by him on 21 November 1994. But it is difficult to say that his failure was the effective cause of the injury.”
Applying this to Mr Crossman’s case surely it is difficult to say that carrying out the surgery three months earlier than would otherwise have been the case “was the effective cause of the injury”. In fact, the medical evidence suggested that the risk of injury would actually have been higher had the surgery been carried out three months later (albeit still small in percentage terms)!
Accordingly, for Mr Crossman to succeed it is my view that, as in Chester, there needed to be a “modest” departure from conventional causation principles. However, the Judge found that Chester only applied to those cases concerning a lack of informed patient consent. In other words, if the Judge had not found for Mr Crossman on conventional principles his claim would not have succeeded at all.
I have now read the Judgment several times and am still left scratching my head! It strikes me that notwithstanding the Judgment of HHJ Hughes he did find for Mr Crossman on Chester v Afshar grounds and that he did therefore depart from conventional causation principles! But that’s not what he says!
Confused? Me too!
It is understood that the Defendant in Crossman is unsurprisingly seeking permission to appeal. It will be interesting to see what the Court of Appeal makes of it all!