Department of Health response to the Keogh Review on Cosmetic Interventions - published 13.2.14
Monday, 16 September 2013Contractual Terms for Private Surgery
A large number of surgical procedures, including cosmetic procedures, are performed each year under contract. The fact that a patient is paying for surgery or treatment does not, by itself, mean that he/she is entitled to expect a higher standard of care and skill from their surgeon than if they had undergone the procedure within the NHS.
Nevertheless, private providers do sometimes make claims for the excellence of their services. Certain representations may be made in pre-operative consultations which persuade the patient to enter a contract and pay for surgery. What effect do these have on the contractual obligations of the provider?
We are all used to warranties or guarantees for certain products but most (reasonable) people will know that the performance of surgery cannot be guaranteed in the same way as the performance of a new fridge-freezer. In relation to medical or surgical services, it will be very difficult to establish that the surgeon or provider guaranteed a certain outcome. As the court noted in Thake-v-Maurice  QB 644,
"The reasonable man would have expected the defendant to
exercise all the proper skill and care of a surgeon in that
speciality; he would not in my view have expected the
defendant to give a guarantee of 100 per cent. success."
Even if a provider promised "you will be happy with the result", or "we will make you look like Brad Pitt", it is highly unlikely that a court would find that a patient had relied on those statements such that they became terms of the contract or warranties! That is not to say that pre-contractual representations are irrelevant to issues of consent. Patients' expectations should always be carefully managed.
An alternative approach is to contend that the contract imposed a higher standard of care on the surgeon than would be expected in tort. However, two recent cases do not encourage that approach either.
In Silverstone-v-Mortensen and Oxford University Hospital NHS Trust  EWHC 2706 (QB) the Court considered whether a term could be implied into a contract for surgical services which would affect/raise the standard of care of the surgeon concerned. The Judge dismissed that suggestion:
"34. ... it is pleaded that Professor Mortensen would exercise the skill and care of a world authority in [his surgical management of the case]. This does not add anything to the ordinary duty in contract and tort that the surgery would be performed to the standard expected of a competent consultant surgeon in a major teaching hospital."
In Dove-v-Jarvis Unreported, Mr Justice Gouldie QC High Court, 6.2.13 had to consider a contract for private surgery by way of a hip replacement. It was claimed that there was a contractual term that the surgery would be "well done". The Judge noted that it was common ground that in tort and contract the standard of care to be expected was that of a surgeon experienced and expert in performing hip arthroplasty .
This was a high standard and not the medical equivalent of "a small firm of country solicitors" [a slightly quaint analogy, perhaps]. The Claimant contended that the assertion that the surgeon would be "well done" gave rise to a contractual obligation to exercise a higher standard of care. It was not alleged that it gave rise to a warranty. The Judge rejected the contention.
" Contract does not in this instance convert a losing case on the duty of skill and care into a winning one."
In my view, such discouragement notwithstanding, there may be implied terms, perhaps falling short of warranties, as to outcome or the standard of care and skill, which arise from pre-contract representations. This may occur in the field of cosmetic surgery, for example. Suppose a breast surgeon agrees with the patient that he will use implants to enlarge her breasts to a C-cup and he makes them much larger. Or, the patient is told that the surgeon is particularly skilled and experienced in producing fine, pale scars but the suturing is done to a standard which would be considered acceptable for the normally competent surgeon, but not for a specialist in producing pale, fine scars?
If a patient has shopped around and is willing to pay 50% more for a particular surgeon because he has been held out as one of the world's leading surgeons in the field of rhinoplasty, why should the patient expect the same standard of care and skill as from the surgeon up the road charging much less and not making such representations?
This is surely an area of law ripe for further judicial consideration. The courts will be more inclined to find that there was a contractual promise which went beyond the duty of care in tort where (a) the representation made a real difference to the choices made by the patient, (b) it was reasonable to rely on it, and (c) the finding would make a material difference to the outcome of the legal claim.
The Aesthetic Patient and the Law
Patients dont seek to sue their Doctors or Nurses for Clinical Negligence, its costly, lengthy and very traumatic, but with the increasing numbers of Cosmetic Surgery procedures here in the UK there has been an inevitable correlation and increase in Clinical Negligence cases landing on the desks of the Lawyers.
There are two main reasons given for this spike in litigation firstly, the surge in numbers of cosmetic procedures performed and secondly the unsatisfactory surgical outcome.
Can Cosmetic Surgery Patients protect themselves from ending up in Court?
Well as they say knowledge is power and being a well informed patient will give you the cutting edge when choosing who yields the scalpel on you.
All this week AESTHETiKA are featuring the Aesthetic Patient and The Law.
We will be posting information for you here on the website on our FaceBook page and Twitter too using #AestheticLaw
CONSENT – BE A WELL-INFORMED PATIENT
Do you know that you must provide your Doctor with consent to treat you?
Consent to treatment is the foundation of the surgeon-patient relationship.
Without consent being provided, an operation would constitute a battery on the patient, and could give rise to criminal or civil proceedings.
Therefore, before most surgery, even minor procedures, you will be asked to sign a consent form. Such forms are usually standard, explaining the nature and purpose of the procedure; the patient signs to say that he/she has read and understood it, and has consented. However, the form itself should be considered window dressing, as it is the explanation of everything that is contained on the form that is the important issue. Just signing the consent form, without any explanation being given to you, will not be considered valid consent. The consent process should be seen as an open dialogue between you and the surgeon – it is not just a process of getting a signature on a form.
Plastic surgery is elective, and therefore entails a choice being made by you to go ‘under the knife’ in order to achieve a particular result. Therefore, patients whose initial expectations are not met frequently resort to litigation. For these reasons, the burden of proof on a surgeon undertaking to perform plastic surgery is generally thought to be of a higher standard than that which applies to an NHS surgeon.
For consent to a medical procedure to be valid, three elements must exist:
1. It must be voluntary and unforced; any degree of coercion will render otherwise valid consent invalid. To ensure that consent is freely given, you should be given time to consider your options before deciding to proceed with a proposed treatment, and an opportunity to ask questions.
2. You must be capable of understanding what the procedure is, and the risks associated with it. The starting point in the case of adults is always to presume that the patient has capacity until it is shown otherwise.
3. You must be given sufficient information concerning the nature of the procedure so that you know what you are consenting to. The General Medical Council and the courts expect patients to be given all information material to their decision, including details of potential complications.
Failure to adhere to these three principles may result in you taking a risk that you would not have taken had you been fully aware of it.
WHAT SHOULD YOU BE INFORMED ABOUT?
A surgeon is not expected to warn a patient about every single risk. Currently, there is no duty on surgeons to disclose the risk of death associated with general anaesthetic or of routine risks of surgery, such as bleeding, pain, the risk of infection, or that the surgeon is inexperienced at the procedure proposed.
You should be informed about:
• The possible side effects – to include common, minor side effects all the way up to rare but serious complications, including potential death.
• Failure of the treatment to achieve the desired outcome. You should be informed as to what is realistically achievable and what is simply unattainable.
Your surgeon should inform you of these risks even if it may put you off altogether. This discussion should also include the surgeon reminding you that plastic surgery is surgery and that the risks involved are real.
This information can be given in a variety of formats and is now often provided through leaflets - this is no substitute, however, for a full and frank discussion with the surgeon. There should be a detailed discussion between you and the surgeon, not a clinic sales advisor, to discuss your expectations.
An adult patient who becomes temporarily unable to consent due to, for example, being unconscious, may receive treatment necessary to preserve life. In such cases the law allows treatment to be provided without the patient’s consent, as long as it is in that patient’s best interests.
Medical intervention which is considered to be in the patient’s best interests, but which can be delayed until they can consent, should be carried out only when consent can be given.
The right of patients to choose whether or not to undergo a particular treatment is a fundamental one. Only in cases of immediate emergency, or where it is clear that the patient is incapable of giving their consent, can a surgeon proceed with treatment without consent, and must always do so in the patient’s best interest.
We are grateful for the help and guidance provided for us for our featured articles by the Lawyers at Michelmores.
Please be advised there is to the best of our knowledge
No Declaration of Interests and
No Conflicts of Interest
No fees were exchanged or agreed.
You can contact Michelmores directly here at http://www.michelmores.com/
we are especially grateful to Caroline Webber-Brown for allowing us to redistribute this comprehensive article on Consent.
Caroline has developed a broad range of clinical negligence experience since qualifying in 2009. She has experience of cases involving obstetric/gynaecological injuries, surgical error (including orthopaedic and urological surgery) delays in diagnosis, nursing care failures (including pressure sore injury), failed cosmetic surgery and claims arising following the death of a loved one.
Caroline also heads up Michelmores’ NHS Continuing Healthcare team. She currently acts for numerous clients in the recovery of paid care fees and challenging current decisions to refuse future NHS Healthcare funding.
Caroline is a member of AVMA (Action Against Medical Accidents), the Association of Personal Injury Lawyers and Devon & Exeter Medico Legal Association.