Monday, 16 September 2013

Contractual 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 [1986] 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 [2012] 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 [28]. 

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.

"[66] 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.

Wednesday, 4 September 2013

Who Is My Neighbour?

When a catastrophic injury occurs in a social setting, friends, even family members, can find themselves on opposing sides in hard-fought litigation where the courts have to consider from first principles whether a duty of care arose and whether it was breached. In Donoghue-v-Stevenson Lord Atkin famously posed the question, "Who then, in law, is my neighbour?" 

Outside the well-established relationships of employer/employee, doctor/patient, driver/pedestrian or occupier/visitor, the answer is not always clear. Occasionally cases throw up challenging questions as to the ambit of the duty of care. I was recently involved in one such case.

In Poole-v-Wright and others [2013] EWHC 2375 (QB) one of the issues before Mrs Justice Swift was whether one friend owed a duty of care to another in respect of a social or leisure activity.

The claimant was one of a group of friends who, one Bank Holiday weekend, took out two motorised go-karts owned by my client, the defendant Mr Abbott, to drive around an unused car park. When driving one of the karts the claimant's neck scarf became caught in moving machinery behind her, causing her catastrophic injuries. She sued, amongst others, the kart's owner, alleging that he breached his duty of care to her by failing to advise her to remove the scarf. She alleged that the defendant ought to have been aware of the particular danger of a scarf becoming entangled in the unguarded moving parts of his kart.

The defendant contended that he owed no duty of care to the claimant and that in any event the scarf was not such an obvious hazard that he was negligent in failing to alert the claimant to the dangers of wearing it whilst driving the kart.

The parties were involved in a purely social activity. No money had exchanged hands. The kart was not being hired by the claimant. She simply made use of it, as did other present at the outing.

On behalf of the defendant I conceded that even in a social situation an owner of equipment which has a potentially dangerous defect which would not be readily apparent to another to whom he lent the equipment, may owe a duty of care to the other to warn him of the defect - see Coughlin-v-Gillison and another [1899] 1QB 145. That was not however the situation in the case before Swift J. There were no hidden defects - the fact that there were unguarded moving parts in close proximity to the driver was, she found, "plain for all, including the claimant, to see."

The Judge considered the principles set out in Caparo-v-Dickman  [1990] 2AC 605 and in particular the question of whether it would be fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. She also considered authorities such as Tomlinson-v-Congleton BC [2004] 1 AC 46 in relation to the duty to protect against obvious risks. She held at [170] that:

"In circumstances other than the "hidden defect" case, the imposition of a duty of care in circumstances such as these, where leisure equipment is provided by an individual in a social setting for the enjoyment of other adults without any form of reward, would not in my view be fair or reasonable. I consider that it would impose an undue burden of legal responsibility on those who wish to share such equipment with others who might wish to use it. The imposition of such a burden would have potentially far-reaching consequences for those engaging in recreational activities with friends and acquaintances."

The fact that providing the go-kart for the claimant to use gave rise to a foreseeable risk of injury was not sufficient to give rise to a duty of care on its owner. This decision fits with cases such as Poppleton [2008] EWCA (Civ) 646 in which the Court of Appeal emphasised the importance of there having been an assumption of responsibility by the defendant to the claimant in order for a duty of care to arise.

The decision may have been different if the claimant had been a child, or a vulnerable adult.