Surgeon’s Liability and Claims against the Surgeon
UNIVERSITY OF SUSSEX SCHOOL OF LEGAL STUDIES
Tort 2001/2001 Non-Assessed Coursework Essay
Surgeon's Liability and Claims against the Surgeon
"[T]he patient's broad consent to being operated on is effective to protect the surgeon from an action in battery. If the surgeon makes an error leading to the failure of the operation, the claimants complaint is not that he was operated on against his will but that the outcome of the operation was detrimental to him"
What is implied from the above statement is that a patient who gives "broad" consent to an operation will have no cause of action in battery against the surgeon. What then of the surgeon who performs additional procedures without the consent of the patient1, or whilst the patient mentally ill and lacks capacity to give consent2 or he is forced to operate whilst the patient is unconscious following a road traffic accident?3 All these situations would seem to indicate a cause of action in battery, but the courts have held that no such action will lie except in the most exceptional cases.4
This essay will attempt to distinguish between the tort of battery and the tort of negligence and why one is an appropriate cause of action where the claimant has suffered some loss and the other seems unavailable to a patient. It will also attempt to identify some policy considerations that are specific to the medical profession.
Battery is the intentional and direct application of unlawful force to the claimant 5. It is actionable per se, that is, without the need to prove damage (As opposed to negligence where damage is a prerequisite element of the tort). The purpose of the tort of battery (specifically Trespass to the Person) is to protect the physical integrity of the person. In negligence the purpose is to compensate the claimant for the harm suffered.
Battery has been held to constitute any unlawful and direct interference to the person and need not be direct physical contact. The mere act of throwing water over someone or kissing (if unwanted) may constitute a battery. Even the application of a chemical to the claimant that caused a skin complaint was held to be a battery despite the claimant having consented to a different treatment.6 However, as will be seen this may be difficult to reconcile with the current judicial view.
In Wilson v Pringle7 it was held that the intentional act had to be "Hostile" (Croom Johnson LJ):
"In our view, the authorities lead one to the conclusion that in a battery there must be an intentional touching or contact in one form or another of the claimant by the defendant. That touching must be proved to be hostile touching. That still leaves unanswered the question 'when is a touching to be called hostile?'
It is almost inconceivable that a surgeon would be held to have acted with hostility towards the very person he was treating for some detrimental ailment, which, by virtue of his treatment he was trying to cure or alleviate. However, the act of performing surgery is intentional and invasive and therefore an action in battery might be available subject to a number of specific defences, most notably that of consent. If the patient has consented to the treatment then there can be no trespass and therefore no action.8 If however, the claimant consents to a course of treatment ...
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It is almost inconceivable that a surgeon would be held to have acted with hostility towards the very person he was treating for some detrimental ailment, which, by virtue of his treatment he was trying to cure or alleviate. However, the act of performing surgery is intentional and invasive and therefore an action in battery might be available subject to a number of specific defences, most notably that of consent. If the patient has consented to the treatment then there can be no trespass and therefore no action.8 If however, the claimant consents to a course of treatment that is fundamentally different from the actual treatment given, then "real" consent cannot be deemed to have been given as the patient would be ignorant of all the facts necessary to make an informed decision9; DONOVAN, L.J "...[By] real consent, I mean a consent given with knowledge of the factors which ought first to be considered"10
In the case of unconscious patients or those without mental capacity, another defence may be that of necessity, especially where the claimant lacks the necessary capacity to make an informed decision. Such was the case in F v West Berkshire Health Authority11 where the House of Lords stated that the test of what was necessary was "...[what was] in the best interests of the patient"12 What then can be considered to be in the best interests? The answer lies in the Bolam13 test whereby the treatment will be considered necessary "...if a responsible body of professional opinion agree that it was in the best interests of the patient"14 a point to which we will return.
Few claims for battery have succeeded against the medical profession except for expressly unauthorised procedures or where the "real" consent has been induced by fraud15 and there is no doubt that this is due to policy reasons. For example, battery, as stated above, is an intentional tort and may constitute a crime also16; its scope is to protect the person from intentional harm and not allow the best endeavours of professional medical treatment to be open to attack from disgruntled patients. It certainly is not intended to be able to consider the issues of whether sufficient information and the risks inherent in the procedure has been given to the patient and in any event, it is highly unlikely that a claimant who suffers no harm would bring an action in battery as a result of a successful operation. Therefore it can be stated; "The tort of battery is restricted to the most opprobrious interference with the patients body"17
Where the patient suffers loss, or more appropriately some harm, he is highly likely to want to seek some form of redress for his loss and as has been seen the courts are reluctant to allow this in battery. The more appropriate tort therefore would appear to be negligence. However, this also presents some obstacles for the claimant to overcome.
The tort of negligence requires there to be a duty of care owed to the claimant and few would argue this applies to the medical profession towards their patients, a breach of that duty, remoteness and causation (in this context this could be whether the loss or damage is directly attributable to the act of the defendant, or by virtue of some pre-existing ailment)18 and damage.
Having established a duty of care exists between the doctor and the patient, does the doctor owe a duty to the patient to disclose all the necessary information as to the potential risks and problems associated with the proposed surgery and more importantly, is that duty breached should he fail to disclose any potential risks involved? If looked at in light of the requirement for "real" consent it would appear so or the patient may claim that if they had known of the risks they would not have agreed to the procedure being performed.19 The courts have traditionally taken the view that the Bolam20 test should apply and that "...generally accepted medical practice" was to be used in determining the standard owed. This is a considerably generous test and one that can only be policed and altered by the very profession to which it applies. It also enables a worryingly small "body" to be able to be representative of the profession as a whole. In Maynard v West midlands Regional Health Authority21 Lord Scarman stated; "...[A] judges "preference" for one body of distinguished opinion over another, also professionally distinguished is not sufficient to establish negligence"
Joanne Conaghan is highly critical of the approach to the Bolam rule by the medical (indeed any) profession and considers that "[Where] a practice has obviously harmful consequences to patients and where such consequences can easily be avoided (by giving the patient a warning of the risks)... it is surely unreasonable not to avoid those risks". 22 Whilst this remains true where the risks are clearly apparent, if the potential risk is so slight (but the consequence grave) so as to represent a less than one percent risk to the patient of the actual harm arising, is it not reasonable to withhold such potentially worrying information from the patient for fear of them refusing what, to all intents and purposes is a routine operation with perhaps little or no "real" risk or for fear of creating further anxiety? It was just this area that the House of Lords looked at in Sidaway v Bethlem23 where the courts considered the American doctrine of "informed Consent" whereby the doctor is under an obligation to tell the reasonably prudent patient all that he would require to make up his own mind, and preferred instead to reaffirm the traditional view of the "Reasonable Doctor" instead of the "reasonably prudent patient" The doctrine was considered unworkable and prone to allowing unlimited claims and encouraging defensive medicine that would no doubt lead to a further demoralisation of the medical profession.24 The fact that patients are at liberty to ask any relevant questions concerning their treatment should not be overlooked and if they do "...[then] the doctor is required to give an honest answer and if he does not then the implication is clear"25
To summarise, the duty of a doctor to inform his patient of the risks involved is shrouded in policy considerations and there can be no clearer indication of this fact than in the ratio of Lord Dunn in Sidaway v Bethlem:26 "
"...In my judgment the court should not interfere unless the clinical judgment of the doctor taken as a whole falls below the generally accepted standards of the profession...The doctrine of 'informed consent' forms no part of English law. I confess that I reach this conclusion with no regret. The evidence in this case showed that a contrary result would be damaging to the relationship of trust and confidence between doctor and patient, and might well have an adverse effect on the practice of medicine. It is doubtful whether it would be of any significant benefit to patients... It is simply an acceptance of the doctor/patient relationship as it has developed in this country. The principal effect of accepting the proposition advanced by the plaintiff would be likely to be an increase in the number of claims for professional negligence against doctors. This would be likely to have an adverse effect on the general standard of medical care, since doctors would inevitably be concerned to safeguard themselves against such claims, rather than to concentrate on their primary duty of treating their patients.
I would dismiss the appeal."
Cull v Royal Surrey County Hospital [1932] 1 BMJ 1195
2 T v T and Another [1988] 1 All ER 613
3 In this case the defence of Necessity would apply, see Skegg (1974) 90 LQR 512; F v West Berkshire Health Authority [1989] 2 All ER 545
4 Sidaway v Bethlem Royal Hospital Governors [1984] 1 All ER 1018 p. 1026 (Sir John Donaldson MR) "only if the consent is obtained by fraud or misrepresentation of the nature of what is to be done that it can be said that an apparent consent is not a true consent" suggesting that even if the procedure is fraudulent but the patient is aware of what is to be done then consent is valid. However, knowledge of the nature of the procedure but where consent is given by duress it may constitute battery; See Freeman v Home Office [1983] 3 All ER 589
5 See 11 Halsbury's Laws (4th ed) Para. 1210
6 Nash v Sheen [1953] CLY 3726
7 [1987] QB 237 p. 252 - 253
8 Chatterton v Gerson [1981] 1 All ER 257
9 See Allan v New Mount Sinai Hospital (1980) 109 DLR (3rd) 634 where an injection was given in the left arm despite express objection.
0 T v T [1963] 2 All ER 746 (Donovan LJ)
1 [1989] 2 All ER 545
2 [1989] 2 All ER 545 (Lord Goff) p. 566
3 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118
4 [1957] 2 All ER 118 Para. 3.2.1
5 Appleton v Garrett [1997] 8 MED LR 75 Dental work carried out for purely financial gain.
6 S 47 Offences Against the Person Act 1861
7 B S Markesinis S F Deakin Tort Law (1999 Clarendon Press Oxford) p. 266
8 Specifically the "But For Test" see Barnett v Chelsea and Kensington Hospital management committee [1969] 1 QB 428
9 Sidaway v Bethlem Royal Hospital Governors [1985] AC 871 (HL)
20 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 (Lord McNair)
21 [1984] 1 WLR 634
22 Conaghan J & Mansell W The Wrongs of Tort (1999 Pluto Press London) p.56 - 60
23 [1985] AC 871 (HL)
24 B S Markesinis S F Deakin Tort Law (1999 Clarendon Press Oxford) p. 293
25 Pearce v United Bristol Healthcare NHS Trust (1998) 20th May (unreported) (See n.24 at p. 271)
26 [1984] 1 QB 493
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Graham Smith
