Abstract
Consider the following case. A patient, Mr P, visits his doctor who refers him to a specialist. The specialist is a surgeon, Dr S, who advises P that a certain operation is the best form of treatment for his complaint. Since the complaint interferes substantially with his life, P agrees to the operation and it is performed. This type of operation carries with it a twelve per cent risk of partial paralysis. After his operation, P is partially paralysed. S entirely failed to warn P of this risk. P is considering whether he has grounds for beginning legal proceedings. Two important further features of the case are: (i) P believes that, even if S had warned him of the risk, he would still have agreed to the operation; (ii) P believes that, despite the paralysis, his overall position has been improved, since he is now relieved of his complaint. I have two intuitions about this case. The first is that P has suffered some kind of injustice at the hands of S, and because of the nature of their relationship might therefore be expected to have a corresponding legal claim against her. The second is that S made a serious blunder in omitting to inform P of the risk attached to his operation, and might therefore expect an action against her on the ground of the breach of her duty to practise with reasonable care. This paper is an attempt to develop and justify these intuitions.
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