In Chappel v. Hart, Chappel, an ear, nose and throat specialist, performed surgery on a patient, Hart, for the removal of a pharyngeal pouch in her esophagus. Hart would have required the operation eventually but it was still considered elective because she did not need it right away. Hart had expressed concern on what effect the operation might have on her voice. Chappel failed to warn her of a small risk of vocal damage if the esophagus were perforated and an infection set in. During surgery, Hart’s esophagus was perforated and infection did set in, which led to a paralysis of the right vocal cord. The failure of Chappel to warn Hart of the risk of damage to her voice was held to have set off a foreseeable chain of events permanently affecting Hart’s voice.
While Hart admitted that she still would have undergone the operation even if she had been warned of the risk, she testified that she would have deferred the operation, taken further advice and probably would have sought out the most qualified surgeon available. That surgeon was apparently not Chappel.
There was a difference of opinion between the majority and dissenting judges as to whether surgery by a more experienced surgeon would have carried a lower risk to the patient’s voice. The majority of the judges concluded that the risk would have been lower had a more experienced surgeon performed the operation.
More importantly, three of the five judges held that Chappel’s failure to advise Hart of the risk led to her undergoing the procedure when and where she did, and vitiated her consent.
The Court therefore clearly held that a medical practitioner is under a duty to inform a patient of any foreseeable risk. It also went further, however, and held that where such a duty arises, it is necessary for the plaintiff to establish what she would have done if the information in question had been provided to her (Ibid, at para. 9).
The court in Chappel adopted a primarily subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered.
Gaudron J. seemed most influenced by the evidence of a medical professor that suggested that the risk would have been less if Hart had had a more experienced surgeon. He stated:
It is not in doubt that a risk of perforation and infection was and is inherent in surgery of the kind performed on Mrs. Hart. In that sense, the risk of injury was the same, no matter when or by whom the surgery was performed. However, that is not to say that the likelihood of that risk eventuating was the same.
Professor Benjamin gave evidence from which it might be inferred that the risk of perforation, without which the injury sustained by Mrs Hart could not have occurred, diminished with the skill and experience of the surgeon concerned. (Ibid at para 17)
Similarly, Gummow J. found that Hart would not have undergone the procedure by Chappel, but would have wanted “the most experienced person with a record and reputation in the field, such as Professor Benjamin” (Ibid, at para. 78). Kirby J. held that “intuition and common sense suggest that the higher the skill of the surgeon, the less is the risk of any perforation of the oesophagus into the mediastinum” (Ibid, at para. 97).
Kirby J. also placed considerable significance on the fact that Hart had inquired into a possible risk to her voice. He said, “(t)his was not an ordinary patient. It was an inquisitive, persistent and anxious one who was found to have asked a particular question to which she received no proper answer” (Ibid, at para. 99).