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Damages for the Failure to Obtain Informed Consent? - Nicholas Pilsbury, Hailsham Chambers

18/08/17. When a doctor fails to obtain a patient’s informed consent to an operation, should damages be awarded for that failure to obtain consent, regardless of any award that might be made for PSLA and financial losses? After all, the failure to obtain consent means that a person’s right to self-determination and bodily integrity has been violated and doesn’t that require the Court to make an award to recognise that legal wrong? These were the questions that the Court of Appeal was being asked to decide in the recent case of Shaw v Kovac [2017] EWCA Civ 1028.

Mr Ewan died, aged 86, following a heart-valve operation. A claim was brought by the deceased’s daughter on behalf of his estate alleging that he had not been properly consented for the operation. Liability was not disputed by the defendants. At trial, damages for PSLA and financial losses were awarded. The estate argued that in addition to these amounts there should be a separate award made to recognise the fact that Mr Ewan had not given properly informed consent to the operation.

The Court of Appeal rejected...

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