Skin deep

Recent news reports claim there has been a sharp rise in the number of patients taking legal action after paying for weight-loss surgery as a symptom of the country's growing obesity problem. However, it is without doubt that when cosmetic surgery of any kind goes wrong the impact can be particularly distressing. High hopes turn to resentment and patients regret having sought out and paid for the very procedures which have left them injured or disfigured.

As disappointed patients turn to lawyers for help, it is important to understand the particular challenges their cases present.

Cosmetic surgery litigation is a branch of clinical negligence, but one with distinctive features. The surgery is overwhelmingly provided in the private sector and under contract. Patients self-refer and are exposed to advertising and marketing techniques. The procedures are designed to meet patients' desires about their appearance rather than to alleviate pain or disability. There is government regulation of cosmetic surgery clinics. These features affect all aspects of the litigation.

Consent

Consent to surgery is often a key issue. All cosmetic procedures are elective and patients are influenced by advertising and promotional literature. Their first contact is usually with a non-medically qualified sales person or 'patient coordinator'. Those advising the patient may have a financial incentive to obtain their consent to surgery. Warnings of vivid scarring or serious infection ought to be given, but might dissuade a patient from parting with their money.

As cosmetic surgery is designed to meet the individual's desires, the surgeon must find out what the patient wants and make recommendations accordingly. On the other hand, a surgeon who does exactly what the patient wants will not necessarily avoid liability. He must explain what the surgery will entail, the possible risks, complications and outcomes, and whether future surgery '“ for example, replacement of implants '“ may be required and at what cost.

Many patients self-refer. Surgeons may be open to criticism if they fail to seek contact with a patient's GP or to arrange physical and psychological screening and, if appropriate, counselling, prior to agreeing to perform surgery.

Standard of care

The General Medical Council does not hold a specialist register for cosmetic surgery (although there is one for plastic surgery). Establishing the standard of care to which patients are entitled can be problematic when the industry uses surgeons from many different professional backgrounds. The way in which those surgeons are held out may assist the court to determine the appropriate standard of care and skill. Litigators need to be aware of what material the patient has seen and relied upon.

The contractual position

The patient will usually pay a single sum to the company which provides the premises, nursing and other ancillary services, but no separate fee to the surgeon. Nevertheless, the contractual position is often disputed. Some companies allege that their surgeons are independent contractors for whose acts and omissions they are not liable. Defending on that basis in contract as opposed to tort might be difficult. Others have asserted that they act only as the patient's agent, bringing into question whether the surgeon and others are principal contracting parties. I know of no reported case where these arguments have been tested.

One common standard term is that the company will satisfy itself that the surgeon has what it considers to be 'normal' professional negligence insurance, but if such insurance is held on a 'claims made' basis, then, even if patients make claims within three years of their injuries, the surgeon may not be covered. Further, a significant number of cosmetic surgeons working in the UK live abroad. There may be difficulties therefore in proceeding and enforcing judgments against the surgeon, leaving dissatisfied patients to seek redress against the company provider.

The internet is a source of many offers of cosmetic surgery abroad. If a patient has purchased a package which includes flights, hotel and surgery, then arguably the Package Travel, Package Holidays and Package Tours Regulations 1992 will apply, allowing the consumer to sue the package provider for the negligence of the surgeon.

Regulation

An establishment providing cosmetic surgery is an 'independent hospital' within the meaning of section 2 of the Care Standards Act 2000 as amended. The government has published national minimum standards under section 23 of the Act which do not have the force of law but may be influential in establishing what level of care is acceptable.

The Private and Voluntary Health Care (England) Regulations 2001 came into force on 1 April 2002. They provide for various documents to be available, including a 'Patients' Guide' and policies on the provision of information to patients. These documents would be disclosable in litigation.

The surgeon-patient relationship is not the sole focus of cosmetic surgery litigation: advertising material, contract terms, the use of sales personnel and the impact of regulation will all be relevant. As more patients turn to the law, litigators should beware.

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