In Shaw v Kovac the Court of Appeal had to examine whether the failure to obtain a patients consent amounted to a separate head of damages.

Background

The claimant sought damages against the first defendant, a surgeon, and the second defendant the NHS trust on behalf of the her late father’s estate. Her father, Mr Ewan was an 86-year-old patient who had been diagnosed with aortic valve sclerosis and had been referred to the trust for transcather aortic valve implantation (TAVI). Unfortunately Mr Ewan died during the procedure due to a great deal of blood loss.

The claimant then sought damages on behalf of her late fathers estate on the basis that he had not been informed of the risks of the procedure and had he been warned he would not have consented to the treatment. The defendants subsequently agreed not to defend the claim and judgment was entered against them in the High Court, Queens Bench Division. Damages were assessed at just over £15,000, which included pain, suffering and loss of amenity along with agreed funeral expenses. However HHJ Platts rejected the claimant’s claim for a separate award for the infringement of Mr Ewan’s personal autonomy.

The claimant subsequently sought to appeal the judgment and permission to appeal was granted on the basis that the case raised an important issue as to whether the doctors failure to obtain the informed consent of the patient gave rise to a separate award for compensation in addition to the claim made for pain, suffering an loss of amenity or financial loss.

The Court of Appeal’s decisions

The claimant argued that a sum should have been awarded for the unlawful invasion of her father's personal rights and his loss of personal autonomy caused by the failure to obtain informed consent. The trust opposed the appeal on the basis that the claim was unprecedented and that allowing the appeal would open a floodgate of claims, which in principle could also involve claims where there was a lack of informed consent but the operation was a success, or where the patient would have consented even if given the correct information. In a unanimous decision the Court of Appeal held that the Mr Ewan’s estate had been properly compensated and rejected the arguments in respect of a further conventional award was not necessary nor was it appropriate given the risk it imposed in respect of future claims being brought.

This article is written by Abtin Yeganeh. Abtin is a Trainee Solicitor at Posada & Co.