Although UK residents going overseas for cosmetic or other treatment may be able to sue the hospital or clinic if it all goes wrong, many believe that the medical tourism agency cannot be held liable, as it has no medical knowledge. Specialist lawyers Blake Lapthorn do not agree, and point to travel law to back up this view.
The number of people undergoing cosmetic surgery has increased in recent years. With this escalation has come an increase in complaints and claims for compensation when the surgery does not turn out as expected. The impact of cosmetic surgery going wrong can be far wider reaching than standard surgery. Often the patient will have paid a large amount of money to have the surgery done privately and will have high expectations for the outcome. As with any procedure, the surgeon must obtain informed consent from the patient. This requirement often raises a conflict of interest. If the patient is made fully aware of all the risks of surgery, they may decide not to go ahead with the procedure, and will not therefore part with their money. The surgeon should always establish the patient's reason for the surgery and be clear what the patient hopes to achieve. The surgeon should also explain very clearly in full the possible risks, complications and outcomes. A surgeon may also be open to criticism if he fails to contact the patient's GP or conduct a full physical and psychological assessment beforehand. It is in the surgeon's interest to do this.
Trying to establish the standard of care to which a patient is entitled when they undergo cosmetic surgery is often difficult. It will usually depend on the type of surgeon and what information and leaflets the patient is given beforehand. The relationship between patient and surgeon can cause further problems. This may be different to the normal patient/surgeon relationship, as here the patient is usually paying privately for the treatment, and creating a contract. The company employing the surgeon will often claim the surgeon is an independent contractor, meaning that any claim would have to be brought against the surgeon personally. This can cause further problems, particularly if the surgeon lives abroad, or is not insured and has no assets to claim against.
For cosmetic surgery abroad, the patient may sometimes purchase a package through a medical tourism agency that includes flights, hotel and surgery, as well as time for the patient to recover abroad. Such packages are covered under the Package Travel, Package Holidays and Package Tours Regulations 1992. Under these regulations, if the surgery goes wrong, the patient can sue the package provider (the medical tourism agency), as well as the clinic. The agent may also be responsible for non-medical items such as travel accidents. While travel agents and tour operators selling packages are obliged to have bonds and professional indemnity insurance, there are as yet no similar rules for medical tourism agents; and calling themselves facilitators or consultants does not change their legal status of being an agent if they are subject to the Package Travel, Package Holidays and Package Tours Regulations.
The lawyers say that as more people turn to cosmetic surgery, the burden on surgeons to ensure the patient is thoroughly informed and consenting is ever increasing. The list of holiday accidents that consumers can claim for includes personal injuries resulting from accidents that were not their fault includes accidents caused by air travel, road traffic accidents and coach crashes, and negligent medical/clinical treatment received abroad.
Blake Lapthorn’s approach to a consumer clinical negligence claim: “First we listen to your account of the medical treatment you received, and the injuries you have suffered. We will also involve our medically qualified staff in assessing your prospects of bringing a successful claim. Then we assign a lawyer, or team of lawyers, to your case. Our initial work sets out to establish the strength of your case and whether a claim is likely to be successful. It involves gathering evidence including medical records, and a report from a medical expert. If we can establish there was a breach of duty by the medical personnel caring for you, and that you suffered injury because of that breach, we can proceed with your claim. The claim will normally be brought in the country where the medical treatment was received. Our foreign language abilities, including fluent French, Spanish and German, and international network of agents, TAGLaw, enables us to pursue claims abroad efficiently and effectively. Once you have realised that the clinical treatment you received has caused you injury, it is vital that you start proceedings as soon as possible because the time limits vary, depending on the country in which the claim is brought. Most personal injury claims can be pursued at no cost to you. You may have legal expenses insurance or your claim may be eligible for a no win-no fee arrangement.”
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