Although from a UK County Court, it is interesting to note the recent decision in Kathleen Jones v Royal Devon and Exeter NHS Foundation Trust.
A summary by Outer Temple Chambers explains:
Mrs Kathleen Jones had been put on the waiting list to have surgery performed at the Royal Devon & Exeter Hospital by a highly respected and well known consultant spinal surgeon of her choice, only to discover, on the morning of the operation, that it had never been intended that he was to perform it. Instead, it was to be carried out by a more junior and much less experienced spinal Fellow at the hospital. Unfortunately, the operation went badly and Mrs Jones was left with serious and permanent injuries as a result. She brought a claim, represented at trial by James Counsell, instructed by Crosse and Crosse Solicitors LLP of Exeter against the Trust, for damages for negligence arising from the way the operation was performed and failure to provide her with enough information for her to give consent.
After a trial in Exeter County Court in August, the Recorder:
• accepted the Claimant’s evidence that she was not told in advance as to who was to operate, in preference to the evidence of the spinal fellow who said that she had been told during the consenting procedure some days before;
• found that the Claimant would not have agreed to have the operation performed by a replacement, had she been told in advance, and
• ruled that it was too late for her to be expected to exercise informed choice when, moments before the operation, she was eventually told by a theatre nurse that her surgeon of choice was not available.
He also found, applying Chester v Afshar, that, if the original consultant had performed the operation, it would have been likely that the operation would have been successful and she would have made a full recovery. He concluded his judgment by saying that:
“…although there was no breach of duty to warn the claimant of the risks of the operation, it was an infringement of her right “to make an informed choice as to whether, and if so when, and by whom to be operated on”. Unless a remedy is provided in the present case that right would be a hollow one.”