In this post Vanessa Cashman of 12KBW discusses the recent decision of HHJ Graham Wood QC (sitting as a Deputy High Court Judge) in Tracey Giles v Alexandra Chambers, a rare reported case involving cosmetic surgery.
The Claimant underwent VASER liposuction removal of fat from her thighs and buttocks at the Defendant’s private clinic.
VASER liposuction (vibration amplification of sound, energy and resonance) is a relatively new procedure and involves ultrasound energy to break down fat cells, which are then aspirated. (Traditional liposuction merely aspirating fat cells before they are broken down.) The Defendant was a practitioner at the forefront of this treatment.
The Claimant first saw the Defendant on 26 January 2012. Much turned on the nature and content of the discussion at that meeting. The surgery took place on 20 August 2012 and over six litres of fat was removed from the Claimant’s legs. Following that procedure the Claimant felt extremely unwell; she was nauseated and was in a lot of pain. She was given compression garments to wear. On 25 August 2012 the Claimant was admitted to A&E as a result of dizziness and diarrhoea. She was given fluids and painkillers and was discharged. On 4 September whilst being treated by the Defendant in routine follow-up treatment, the Claimant was found to have very low haemoglobin levels. She went to hospital that day for a blood transfusion. Her compression garments were cut off and removed as compartment syndrome was suspected.
The Claimant’s progress was fairly complicated. She saw a plastic surgeon a number of times to have seroma fluid aspirated from her legs and saw the Defendant on several occasions for lymphatic massage. Her last appointment with the Defendant was on 5 October 2012, at which the Claimant expressed satisfaction with the procedure. It was agreed that at that point the true outcome of the surgery could not be ascertained.
Over the next few months the Claimant began to notice that the appearance of her legs was greatly altered. They were uneven, bumpy, mottled and with impressions in places. There was an obvious asymmetry in her hips. A treating surgeon described her hips and thighs as totally distorted, unnatural and unfeminine. Her legs were described as “defattened” and “skeletonised”.
The Claimant thus embarked on a program of fat grafting with a plastic surgeon and issued proceedings against the Defendant.
The Defendant accepted that the cosmetic outcome was poor but did not accept that she had been negligent. There were three issues on liability for the Court:
- What type of cosmetic outcome was requested by the Claimant? Was it the high definition sculptured look as the Defendant contended or the feminine contour as the Claimant contended?
- Was the Defendant negligent in the way in which she performed the surgery?
- If so, had the final outcome been caused or contributed to by any such failings?
On the first issue the judge weighed up the evidence of the Claimant and the Defendant and considered the medical records in detail. He found the Defendant to be unconvincing and stated that it was “extraordinary” that she did not record what she stated was the Claimant’s wish, namely that “she wanted all her active muscles exposed”. There was no evidence from the Defendant’s assistant, which would have been helpful as the Defendant alleged that the assistant had incorrectly selected an option from a drop-down menu as to the type of liposuction the Claimant requested, and the Defendant did not produce the photographs which she said the Claimant had considered and from which she had picked her desired appearance. The judge rejected the Defendant’s contention that she had counselled the Claimant against this very look, on the basis that it was “inconceivable” that she would not have recorded that advice somewhere.
Breach of duty was thus established, as a procedure other than that requested by the Claimant had been undertaken.
In general comments the judge also found that he could not rely to any great extent on the Defendant’s liability expert as she had not disclosed her professional connection with the Defendant; thus she was not completely independent and impartial. He preferred the evidence of the Claimant’s expert.
He also accepted the Claimant’s case that essentially too much fat had been removed, leaving her legs defattened and skeletonised. She was undergoing fat replacement. He accepted that if he had had to answer this question, this would have been a breach of duty as well. He did not accept that the subsequent seromas were a result of the Defendant’s negligence as they may simply be an acceptable risk of undergoing any significant fat removal.
The Defendant argued that the Claimant had not proven that the poor cosmetic outcome would not have materialised in any event, as it was an accepted risk of any debulking procedure. The judge considered there was no substance to this. He found that had the Claimant had a measured degree of liposuction applied to selected areas, the amount of fat removed would have been significantly controlled and she would not have suffered these consequences.
This is a fact-specific case. However, it throws up an issue which is seen time and time again in clinical negligence cases, and in particular those dealing with cosmetic surgery, namely the quality and credibility of the contemporaneous medical records.
In this case, had the history been as contended by the Defendant and had she kept her records to an appropriate standard, it would have been extremely straightforward for her to have produced the notes of her consultations with the Claimant. Had these shown that the Claimant did request highly-sculptured contours, showing all of her muscles, and that the Defendant had advised her against it, that would in all likelihood have been the end of the case. Equally, had she been able to produce the photographs from which the Claimant allegedly chose her desired appearance, that may also have been highly persuasive. The Defendant had alleged that her assistant had mistyped a description of what the Claimant had requested and yet no evidence from that assistant was proffered to the Court.
By analogy, consent, as we know from Montgomery¸ is of paramount importance. The only way in which treating professionals can justify a defence on a consent issue is to provide comprehensive records.