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May 2011

Cosmetic Surgery

Cosmetic surgery is big business within the UK. Nearly £1 billion per year is spent in the UK alone on cosmetic procedures. As the number of companies and surgeons who are offering cosmetic surgery increases, we at Thompsons are also seeing a significant increase in the number of patients who feel they have suffered negligent treatment.

This article aims to highlight some of the common issues of which people should be aware before deciding to have cosmetic surgery.

Issues relating to cosmetic surgery

The Independent Healthcare Advisory Services defined cosmetic surgery in 2006 as "operations and other procedures that revise or change the appearance, colour, texture, structure or position of bodily features to achieve what patients perceive to be more desirable" (see Good Medical Practice in Cosmetic Surgery).

A subjective view of success

In many ways, this definition highlights the problems inherent with cosmetic surgery which often lead to litigation. Whether cosmetic surgery is successful is ultimately a subjective question - the issue is not whether the surgeon believes the operation to be a success but whether the patient's expectations have been met. Large sums of money are paid by patients to alter their appearance so that they may conform to what society deems to be more socially acceptable or desirable and so it is the patient's perception of the outcome which often leads to litigation.

The purpose of cosmetic surgery and the manner in which it is usually provided (by fee paying, private patients) is arguably at the root of most negligence claims for cosmetic surgery. Providers create an unrealistic impression of what is achievable with surgery using positive advertising and models. It is vital that patients are provided with information not just as to the risks inherent with the procedure but, vitally, what the patient can realistically expect following surgery. An excellent result from a surgical perspective may not satisfy a patient's expectations considering the advertising images patient's are being exposed to and the large sums of money that the patients have paid.

A requirement for patient's and surgeons to have all the necessary information

A further complaint which is regularly raised by patients is that they were not made aware of all the implications which relate to the intended surgery. With breast enhancement, for example, it is important that a patient is made aware that the implants will need to be replaced; that they need to have the finances in place to pay for this. Had they known that repeat surgeries would be required, patients often feel that they would not have undertaken the cosmetic procedure in the first place.

Whether an operation is for cosmetic or life saving reasons, it is vital that the surgeon has access to the patient's medical records prior to the operation. At Thompsons, we have been concerned to learn that on a number of occasions, cosmetic surgery has been undertaken without the patient's medical records having been assessed by the surgeon. This happens because the patient will often self refer for surgery and so their GP may not be involved at all.

Whilst a surgery provider is likely to go through a medical history check with the patient, this is often a tick box form which the patient completes with the assistance of a non-medically qualified person. Patients are often given the opportunity to refuse consent for their GP to be consulted and so certain aspects of their medical history which may be relevant to the procedure may not be brought to the attention of the provider or even the surgeon. At Thompsons, we suggest that if you are considering a cosmetic procedure, you should discuss your plans with your GP, who has no vested interest in the procedure being performed. In addition, patients should ensure that relevant medical records are assessed by the surgeon prior to the surgery being commenced, in the same way that records would be checked prior to any surgical procedure.

Regulation of the providers and the surgeons

With regards to regulation, there are rules surrounding the provision of cosmetic surgery. An establishment providing cosmetic surgery must be registered under the Care Standards Act 2000 (amended). Failure to register may result in criminal sanctions. Worryingly, however, there is nothing to ensure that cosmetic surgery is undertaken by a specialist cosmetic surgeon. There is no General Medical Counsel register for cosmetic surgeons and so patients have little to way of ensuring that the person who is undertaking the surgery has the requisite skills.

The surgeons who undertake cosmetic surgery vary significantly in their qualifications. Some surgeons may have undertaken 6 six years plastic surgery training within the NHS and thus be entered onto the GMC Specialist Register of Plastic Surgeons. Surgeons from other fields, for example ENT surgery, who are on the GMC's Specialist Register in their own specialist field are regularly now performing cosmetic procedures. When a surgeon has been practicing for many years, however, they may avoid the need to be on a specialist register and so have no official qualifications relating to surgery. In addition, if a surgeon has undertaken their training overseas, their training may not have been as rigorous as is required in the UK, although they are still able to access onto the GMC specialist registrar. The lack of regulation regarding qualifications is something which patients who are considering surgery should be aware.

Recognised complications (ie things which go wrong and which are not evidence of negligence)

Although we do see cases of poor cosmetic surgery technique at Thompsons, it is far more common for patients to feel that they have suffered medical negligence because their expectations were not managed by the companies providing the service and they were not fully aware of the effects that surgery would have. Patients should be aware of the complications that can occur following cosmetic surgery.

Many procedures, even if undertaken with due care and skill, can result in a poor surgical outcome because of unavoidable complications. When this is the case, the patient will not recover compensation because the unsatisfactory cosmetic outcome can not be attributed to poor surgical technique.

Common complications of cosmetic surgery

Following nasal surgery (rhinoplasty) even when undertaken properly, ten percent of patients require a second procedure to correct problems arising from the first procedure. This second procedure is unlikely to be free and a patient should be made aware of the likelihood and costs of revision treatment. Breast reduction surgery has a 10 percent chance of infection, reduced or even loss of nipple sensation. Even when undertaken with all due care and skill, breast reduction surgery can cause significant scarring. The patient will not be able to recover compensation where the extensive scarring has been caused through no fault of the surgeon. With breast enlargement, one in ten patients will experience altered breast sensation, including loss of nipple sensitivity. Within 3 years of the procedure, 9 percent of patients will also experience a wrinkling of the implant, or the implant may be squeezed as a result of a thickening of the scar tissue surrounding it

Problems which Thompsons has experienced when representing clients in respect of claims for negligent cosmetic surgery

One of the key problems with cosmetic surgery is who should the patient pursue in court should the procedure go wrong? It is our experience that once something has gone wrong, cosmetic surgery companies often try to allege that they were simply agents for the surgeon and that the company is not liable for what has happened, forcing the patient to attempt to sue the surgeon personally.

Pursuing the surgeon personally

Most patients assume that because they have paid a particular company for the cosmetic treatment, if something goes wrong it would be the company that is liable. This is, unfortunately, not the case. At Thompsons Solicitors we are regularly faced with cosmetic companies denying they are liable for damage caused during surgery, alleging that the patient must sue the surgeon personally.

Perusing a claim against the surgeon personally can make things more difficult for patients for several reasons. Firstly, the surgeon may not be based in the UK and so patients may face jurisdictional difficulties if they have to proceed against a surgeon who is based abroad.

Secondly, the surgeon may not have sufficient insurance to cover the claim against them. Further, some surgeons' insurance may be subject to an excess whereby the first portion of claims against them have to be paid personally by the surgeon and they may not have sufficient personal funds to cover the excess. It is also likely that the surgeon will allege that the cosmetic company is actually liable, making claims more complicated. Worryingly, some cosmetic companies are not even checking to see whether their surgeons have insurance - something which is touched on further below.

Whether the cosmetic company or the surgeon are liable for what has happened varies depending on the facts of the case. As specialist clinical negligence lawyers, Thompsons Solicitors would be able to provide advice as to whom to pursue under the circumstances.
These sorts of defensive tactics are used regularly by cosmetic surgery companies. Claims by Thompsons Solicitors against well known cosmetic surgery companies serve as a good example.

Cosmetic surgery companies in administration

Cosmetic surgery companies have in the past been known to go into administration without the general public being made aware. They are often then bought over by a new company and continue trading under the old name without prospective patients being made aware of this.

Thompsons have represented clients who received treatment from cosmetic surgery companies who have gone into administration. In a number of cases, there were insufficient funds for a distribution to be made to unsecured creditors. In short, this means that even if a Court found that our clients had received grossly negligent treatment, the administrators would not pay the damages on behalf of the cosmetic surgery company.

Cosmetic surgery companies sometimes have poor insurance cover

One of the key problems we have experienced when bringing claims against cosmetic surgery companies is that they have often taken out a relatively cheap form of insurance called a 'claims made' policy. This means that the protection offered to patients is relatively poor. As soon as the company in question stops paying its insurance premiums, their patients are no longer able to claim against the insurance if anything goes wrong.

Comprehensive insurance is available which provides that as long as the insurance policy is in place at that time of the treatment, the insurance company will meet any claims, even if the company providing the treatment no longer exists. This form of insurance provides much better protection for patients. Some cosmetic surgery companies ensure their patients are protected by a comprehensive insurance policy, others, however, have insurance which provides a much lower level of cover for their customers.

Refusing to provide details of the surgeon who performed the surgery

Our clients can have difficulty obtaining the information they need in order to pursue a claim directly against the surgeon. Cosmetic surgery companies often try to allege that the surgeons are not employees and as such, they refuse to assist us at all in pursuing a claim against the surgeon. In short, despite what we feel has been negligent treatment provided by a cosmetic surgery company, the Defendants often do everything they can to avoid helping their patients.

What is of even greater concern is the fact that cosmetic surgery companies have told us that they did not have a copy of the operating surgeon's insurance policy. Without having checked the surgeon's insurance policy, the company would have no way of knowing whether the surgeon had adequate insurance to protect patients in the event of negligence.

What Thompsons Solicitors advise you do before deciding to have cosmetic surgery

Time and again at Thompsons we are faced with cosmetic surgery companies taking these kind of steps to hide from their responsibilities to their patients. We would advise anyone who is considering cosmetic surgery to think carefully before making a decision. If they do decide to have the surgery, there are a number of recommendations we would make:

1. Discuss the matter with your GP. Ask whether there is anything in your medical history which would make surgery more risky.
2. Find out who is carrying out the surgery. Ask where they trained? Make sure the cosmetic surgeon is on the GMC plastic surgery register.
3. Make sure the surgeon has seen your medical records before the surgery.
4. Have a discussion with the surgeon before making a decision. Ask about the potential complications inherent in the surgery. Ask what can be realistically expected from the surgery. Discuss with the surgeon what you would like to achieve through surgery and ask whether this expectation is likely to be met.
5. Make sure you will be in a position to pay for further treatment in future if required.
6. Ensure you ask the provider to provide written confirmation as to who would be liable should anything go wrong. Ask them what type of insurance they have – will you still be protected should the company become insolvent or stop trading?
7. Ask them whether the surgeon is insured. Will you be able to recover fully against the surgeon should something go wrong?

Compensation Claims Advice

Thompsons Solicitors have years of experience in dealing with cases involving clinical negligence. If you or anyone you know has suffered from any form of clinical negligence, telephone us now for accurate personal injury claim advice.

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Thompsons Solicitors are experts in all matters relating to clinical negligence and will be able to advise you as to whether or not you have a valid personal injury claim for compensation. Our specialist clinical negligence lawyers will be happy to talk you through the process of making a claim in plain English and will be happy to answer any questions or queries you may have.

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