Sidaway v. Bethlem Royal Hospital and Ors.

Ms. Sidaway brought an action in negligence against Bethlem Royal Hospital and the hospital’s surgeon after she was left severely disabled from a spinal operation.

Ms. Sidaway, who suffered from constant shoulder and neck pains, was advised by a surgeon employed by the hospital to have an operation on her spinal column to relieve her pain. The surgeon had warned her of the inherent risks of the operation but allegedly failed to warn her of the risk of spinal damage which could lead to partial paralysis. The risk of such damage was estimated at less than 1%, and would be present even if the operation was performed with due care and skill. The risk materialized during Ms. Sidaway’s operation and left her severely disabled after the operation. Ms. Sidaway brought an action against the hospital and the surgeon’s estate (since he had died before the matter could go to trial) claiming damages for personal injury. As the surgical procedure had been performed accurately, Ms. Sidaway based her case on the surgeon’s failure to inform her of all the risks of the operation.

The Court found that the hospital and surgeon were not liable to pay for personal injury caused to Ms. Sidaway. The Court found that the evidence submitted by the claimant in order to prove that she had not been fully informed about the risks of the operation was insufficient.  Furthermore, the Court observed that the duty of a doctor to inform his patient about the risks of an operation was subject to the doctor’s overriding duty to have regard to the best interests of the patient. The surgeon’s non-disclosure of the risk of damage to Ms. Sidaway’s spinal cord accorded with a practice accepted as proper by a responsible body of neuro-surgical opinion, and was therefore reasonable. Since she had not proved on the evidence that the surgeon had been in breach of duty by failing to warn her of that risk, the hospital and surgeon were not liable. The appeal was accordingly dismissed

“My conclusion as to the law is therefore this. To the extent that I have indicated I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing: and especially so, if the treatment be surgery. The critical limitation is that the duty is confined to material risk. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient's position would be likely to attach significance to the risk. Even if the risk be material, the doctor will not be liable if upon a reasonable assessment of his patient's condition he takes the view that a warning would be detrimental to his patient's health.”  [1985] AC p. 889-890.

“No doubt if the patient in fact manifested this attitude by means of questioning, the doctor would tell him whatever it was the patient wanted to know; but we are concerned here with volunteering unsought information about risks of the proposed treatment failing to achieve the result sought or making the patient's physical or mental condition worse rather than better. The only effect that mention of risks can have on the patient's mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as anyother part of the doctor's comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied.” [1985] AC p. 895.