Cosmetic Surgery: Clinical Negligence Explained

What is clinical negligence?

Clinical negligence (also known as medical negligence) occurs when a doctor or other health professional breaches their duty of care to the patient, resulting in physical and/or mental harm and suffering. The patient can claim compensation for their pain and suffering, loss of amenity and other losses resulting from the breach of duty.

Cosmetic surgery ranges from the most popular – breast augmentation; to rhinoplasty (‘nose job’); botox; dermal filler; abdominoplasty (‘tummy tuck’), the rhytidectomy (‘face lift’), blepharoplasty (‘eyelid reshaping’), otoplasty, pinnaplasty (‘ear reshaping’), and liposuction to remove excess fat. Some are performed on the NHS though the majority are carried out privately.

Common consequences of clinical negligence

Clinical negligence before and during cosmetic procedures can cause a number of problems, including blood clots, problems with anaesthesia, infections resulting from poor hygiene or inadequate aftercare, nerve damage as a result of poor surgical techniques, excessive scarring, lack of warnings about the risks, and so on.

Botox and dermal filler are the most common cosmetic and non-surgical treatments in the UK today, with many patients popping into for their Botox injections during their lunch hour at work. But it can go wrong if not properly carried out, leading to potential paralysis, disfigurement, visual problems and distress.

Clinical negligence claims following cosmetic procedures

All cosmetic surgery and procedure involve a number of risks. Your cosmetic surgeon has a responsibility (a duty of care) to explain the procedures you are to undergo, and the potential risks of the procedure, so that you can give informed consent to have the work done. The cosmetic procedure itself must be carried out by the surgeon with reasonable care and skill. If there is a breach in the duty of care towards you and you suffer harm or loss, you can make a compensation claim.

In order to succeed in a clinical negligence claim following cosmetic surgery, you must prove that your cosmetic surgeon did not meet the standards expected of them. The same applies for any other cosmetic procedure and the professional who carried it out. You must be able to demonstrate, on the balance of probabilities, that you did not receive the standard of care you would have expected to receive from a reasonably competent, skilled specialist in that area, and that you suffered harm as a result.

For instance, a claimant received a substandard service during an NHS operation to target a discrepancy in the size of her breasts, resulting in severe distress. After an expert report was obtained from another breast surgeon, the claimant later received damages covering the cost of the remedial treatment required to put right the mistakes made in the first procedure.

Breach of contract

If your cosmetic procedure was arranged privately and you are unhappy with your treatment, you may be able to make a claim for breach of contract against your surgeon or the provider itself, whether or not you have a medical negligence claim. You will need to check the terms of your contract and show that your surgeon/provider breached a term of the contract in order to succeed in your claim.

Expert legal advice should be taken because contract terms are not always clear, or easily interpreted.

The PIP scandal

The now infamous PIP (Poly Implant Prothese) scandal back in 2010 placed the risks of breast implant cosmetic surgery firmly into the public eye. Hundreds of thousands of women worldwide (around 50,000 in Britain alone) were given faulty implants made from industrial-grade silicone which can rupture. The boss of the French company which distributed the implants received a four-year prison sentence for fraud, and a German firm which granted European safety certificates for the implants was ordered by a French court to pay compensation to hundreds of women.

The scandal resulted in a major review, following which the Breast and Cosmetic Implant Registry was established. Now, the details of all breast implant procedures completed in England by both the NHS and private providers must be entered on the register.

Your legal rights

Whether or not you undergo cosmetic surgery or a cosmetic procedure privately, or under the NHS, the surgeon, doctor or other health professional, must exercise reasonable skill and care. If they do not, you have the legal right to claim damages for your pain and suffering, and other losses incurred. You can also make a formal complaint in an effort to receive an apology and other forms of redress, such as a change in working practice.

Cosmetic surgery negligence cases on the rise

As the number of cosmetic surgery procedures carried out in the UK grows, so does the number of clinical negligence claims relating to cosmetic surgery procedures. In addition, a serious problem relates to unregulated practitioners carrying out non-surgical procedures such as Botox injections and laser hair treatment where the risks of poor treatment are higher.

If you believe you have been the victim of clinical or medical negligence, seek legal advice from professionals with experience and expertise in medical negligence and cosmetic surgery. You can also contact the Clinical Disputes Forum for advice.