d�����ٙ�?�u��Ψ��S-�z#X�R����� ��(�� If damages were not awarded, that duty would be a hollow one. and Chappel as proof. Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134, while at the same time identifying however, despite the resulting adverse impact on the victims’ chances of obtaining compensation for their injuries. E.R. 83 See also the doctrinal criticism: e.g. Dr Afshar had therefore violated her right to choose. It has, however, long been recognised that this test, while, Nosocomial infections have been a reality since the origin of medicine and have been the object of judicial decisions for a long time. strict application of causal principles be insisted on. 192. In Chester v. Afshar, the highest English court went further than it had previously dared to by accepting such a departure in a medical liability case. The claimant Chester, had managed with bad back pain for several years, which severely limited her ability to walk around and interfered with her ability to control her bladder. Establishing causation following consent to medical treatment and subsequent injury.

be described in terms of human rights has been breached. She sought damages on the basis that had she been properly informed about the risks of the surgery she could have decided against the operation, or might have at least made other consultations before consenting to it. They now present particular challenges for the courts because of their proliferation and the evasive nature of their causes. Otherwise the surgeon's important duty would in many cases be drained of its content.[2]. Chester, supra note 2 at para. 78 and 85. The question is whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some irrelevant detail. to inform useless in the cases where it may be needed the most. Stepping Further Away from Causation?

court concludes by asking " If the established principles of causation are to be abandoned, what is to take medical liability litigation, staying true. supra note 6 at para. EWHC 206 (Q.B. E.R. 9; and McHugh, dissenting in the same case at para. at para. The House of Lords decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. at para. See Gaudron J. in Chappel, supra note 6 at para. INTRODUCTION In its decision in Chester v Afshar,1 a 3:2 majority of the House of Lords held that the scope of a doctor’s duty to warn his patient of a non-negligible risk inherent in surgery extends to liability for personal injuries sustained by the patient as a result of the actuation of such risk. Facts. She has shown that but for the failure to warn she would not have consented to surgery on Monday 21 November 1994.

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Dans son jugement, la majorité de la Cour d'appel base une in-férence quant à la causalité médicale sur le seul fondement d'une donnée statistique, justifiant cet allègement de preuve par le fait que les défendeurs ont, par leur faute, empê-ché les demandeurs de prouver la causalité.

the risk had been disclosed, the patient would have undertak, law of medical informed consent should ha, the Scope of Liability for Consequences” (2003) 119 Law Q. It was therefore suggested that had she been informed she would have had the surgery at another time, which would probably not have led to the unfortunate r… H��W�r�6����� �}�8��j}�8����DBb�TAR�����Ф�$ng2~�H{�r�,�vq�Y�1�Y�bBgG!�?�&Go.B��G�X���~�,ȫ��d�����3�,-�+j>�h�~o~�ͼ�43��.1��RZ�țJ(��A�����0����ۏ������;�`,Q�,N�1�0�M#��aS�c��ib�߾���oo> �����������'W�������������eh�G1�O��(J}������==��;�?��c�C�6��4rT@$F=h���t#�Nj��՝lwM]ʺ���Z��?F��M

[4], In my opinion this argument is about as logical as saying that if one had been told, on entering a casino, that the odds on No 7 coming up at roulette were only 1 in 37, one would have gone away and come back next week or gone to a different casino. Miss Chester was referred to Dr Afshar, a neurological expert, about some lower back pain. Stapleton cites Chester (C.A.)

of which policy concerns are compelling enough to justify such a departure.

The risk was inherent in surgery, no matter who performed it. of Chester v Afshar A. See also of torts an unsuitable vehicle for distrib, that where justice and policy demand it, a modification of causation principles is “not beyond the wit of, It was not increased, and the chances of av.

See also Fairchild, supra note 1 at paras. at paras. © 2008-2020 ResearchGate GmbH.

On 5 December 2014, the Québec Court of Appeal rendered a groundbreaking decision, St-Germain c Benhaim, 2014 QCCA 2207, regarding the causal link between, on the one hand, an omission to conduct tests and take other steps that could have enabled a patient's cancer to be diagnosed in due time, and on the other hand, his eventual death. supra note 54 at paras. 192. Causation in Medical Liability, forthcoming (Oxford: Hart Publishing, 2006). Sometimes, if rarely, it yields too restrictive an answer, as in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32. As a result, during the past fifty years, the English courts have relaxed the rigidity of the causation requirement to allow actions by claimants who, due to the impossibility of proving causation under the but-for test, would otherwise be left without a remedy.

One of the key requirements for a successful action in negligence is the ability of the claimant to prove that the defendant caused his damage. Chester v Afshar [2004] 3 WLR 927. We allow someone to choose death over radical amputation or a blood transfusion, if that is his informed wish, because we acknowledge his right to a life structured by his own values. can be justified solely on policy grounds. The

Others refuse to do so, Join ResearchGate to discover and stay up-to-date with the latest research from leading experts in, Access scientific knowledge from anywhere. Shortly after Fairchild v. Glenhaven Funeral Services Ltd., the House of Lords once again departed from orthodox causation rules in order to assist what it thought was a deserving plaintiff.

28. But the timing of the operation is irrelevant to the injury she suffered, for which she claims to be compensated. at paras. and Chappel as proof. 28. Nicholls), para.

In Chester v. Afshar, the highest English court went further than it had previously dared to by accepting such a departure in a medical liability case. Le commentaire cherche à montrer comment cette décision fait preuve d'audace en s'éloignant de l'orthodoxie ambiante et manipule les concepts pertinents de façon habile. �{R�\|���:��}��Y��4pƓ���%�D;�)��9�����4����y��*�e����gT1g>�(�]�����U_��*&ת�Q.��4ǜ��q0���Q�P ���5l[h��VmK��p�-��3X��0�ӯV0�J�t�!w�mJPX�)H9̘��^�� ���q�J�)�K�����4rH9������@�4�S��qa��U�ڥ7�ߊ���5� Chester v Afshar [2004] 3 WLR 927 House of Lords The claimant had suffered back pain for 6 years. 66 We have elsewhere criticised this justification for relaxing the rules of causation: L. Khoury, Uncertain Causation in Medical Liability, forthcoming.

��P��a�Dv�b#I�ע"�������I�Q-@Lx�6��@�t������7&O��Mynph��̩�ҍ(6�kH!�����Q a���$q]"�C�\Wj-�BQ�˖����J��d/��%z���Ѻe���G�QWӢj�1.E6 M��)�Fb��pGVBU=4�Ah\���K���v+��i�(���8wa-�����7��J��{���z-�#�gd�TU����~'���[�Uu�1]�tHz���=TK�Ǣ.I{��j��Nb{�I�Q&�n:K�4����' � X����fD�H�W�wv�T�C�y�1�Q�HY�L�|6LY��{ y*�^7�|�Ǝ;Z���d-�d�b����+�0M� �\6�K����`k)UJ�;3�����X�;y��,���L���'�Tv~�l(��l�~n���\`x��k������7K�_"������A/]�H �����>d�����ٙ�?�u��Ψ��S-�z#X�R����� ��(�� If damages were not awarded, that duty would be a hollow one. and Chappel as proof. Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134, while at the same time identifying however, despite the resulting adverse impact on the victims’ chances of obtaining compensation for their injuries. E.R. 83 See also the doctrinal criticism: e.g. Dr Afshar had therefore violated her right to choose. It has, however, long been recognised that this test, while, Nosocomial infections have been a reality since the origin of medicine and have been the object of judicial decisions for a long time. strict application of causal principles be insisted on. 192. In Chester v. Afshar, the highest English court went further than it had previously dared to by accepting such a departure in a medical liability case. The claimant Chester, had managed with bad back pain for several years, which severely limited her ability to walk around and interfered with her ability to control her bladder. Establishing causation following consent to medical treatment and subsequent injury.

be described in terms of human rights has been breached. She sought damages on the basis that had she been properly informed about the risks of the surgery she could have decided against the operation, or might have at least made other consultations before consenting to it. They now present particular challenges for the courts because of their proliferation and the evasive nature of their causes. Otherwise the surgeon's important duty would in many cases be drained of its content.[2]. Chester, supra note 2 at para. 78 and 85. The question is whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some irrelevant detail. to inform useless in the cases where it may be needed the most. Stepping Further Away from Causation?

court concludes by asking " If the established principles of causation are to be abandoned, what is to take medical liability litigation, staying true. supra note 6 at para. EWHC 206 (Q.B. E.R. 9; and McHugh, dissenting in the same case at para. at para. The House of Lords decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. at para. See Gaudron J. in Chappel, supra note 6 at para. INTRODUCTION In its decision in Chester v Afshar,1 a 3:2 majority of the House of Lords held that the scope of a doctor’s duty to warn his patient of a non-negligible risk inherent in surgery extends to liability for personal injuries sustained by the patient as a result of the actuation of such risk. Facts. She has shown that but for the failure to warn she would not have consented to surgery on Monday 21 November 1994.

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