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Published 18 November 2016
The case of Karen Turner v Mr Nigel Carver provides useful lessons on the scope of the duty of care owed to cosmetic surgery patients, the critical role of the consent-taking process, and the importance of following instructions.
Karen Turner approached Mr Nigel Carver, a Consultant Plastic Surgeon, with the intention of undergoing breast augmentation surgery. In past years she had undergone several prior breast augmentation procedures and she now intended to increase her breast size further. In the weeks prior to surgery there were detailed discussions between the two as regards Miss Turner's surgical options, the size of breast implants to be used, and the risks of surgery. The Claimant was also provided with written information sheets which reflected the matters discussed.
Surgery was performed and the Claimant was happy with her outcome, so much so that about three months later she returned to Mr Carver to undergo liposuction. However, about seven months after the operation a further procedure was needed to change the position of one of the breast implants. About two weeks afterwards, the Claimant experienced a serious complication whereby a haematoma occurred which required emergency surgical drainage. Subsequently, the Claimant began to complain about the outcome achieved from the first operation, at first arguing that her breasts had not been made large enough, but later arguing that they had been made too large.
The Claimant pursued a compensation claim to trial where she argued that Mr Carver had not given her adequate information about the risks of surgery, and that if he had she would not have undergone the breast augmentation operation. She also argued that the implants used by Mr Carver were far too large, and had produced an unnatural result.
The Court found that while in some respects Mr Carver's contemporaneous notes of the consent-taking process were not as full as they could be, he had both orally and through the provision of detailed information sheets given her sufficient information about the risks of surgery. The Claimant had therefore given her consent to the procedure.
The Court went on to consider the more difficult question of whether Mr Carver had made the Claimant's breasts too large, in other words was it incumbent upon him to refuse to insert the relatively large implants that the Claimant had requested? When considering this question the Court preferred the evidence of the Defendant's expert witness (Mr Perks) who had suggested that negligence would occur when the cosmetic outcome went "outside the very wide range of natural human variation". In this instance, the Claimant's outcome fell within that range, and so Mr Carver had not been negligent.
If the Claimant was now unhappy with her outcome, this was not due to any negligence on the part of her surgeon. This was simply a case of buyer's remorse. The claim failed and the Claimant was ordered to pay Mr Carver's costs.
Even if the Claimant had succeeded in demonstrating negligence by Mr Carver, she would have lost a substantial part of her compensation because of her own contributory negligence. A large part of the value of her claim rested on the haematoma which developed after the second operation and which required emergency surgical drainage. It appeared that despite having been advised on several occasions to not engage in strenuous exercise for several weeks after surgery, the Claimant had been attending her local gym. While there she had probably engaged in strenuous exercise and this was the most likely cause of her haematoma. She had been contributorily negligent, and would have lost 66% of any compensation paid in respect of the haematoma.
This claim is an example of a patient being unhappy with the outcome of a cosmetic, elective procedure, but failing to achieve any damages because she failed to establish any negligence against her treating surgeon. It is a reminder to clinicians and to their medical-malpractice Insurers of the importance of documenting the information discussed about the risks of a proposed treatment, and a patient's precise instructions, in order for claims to be defended. Encouragingly, the decision also shows that Courts are prepared to make a finding of contributory negligence in med-mal claims against patients, where the facts allow this. Again, it is essential that clinicians suitably document their follow-up advice where it appears that a patient has failed to follow this.
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