TATLA Newsletter: August 2022

CROSS-BORDER CLINICAL NEGLIGENCE & THE “LOCAL SAFETY STANDARDS” DEFENCE:

Clarke v Kalecinski & Others [2022] EWHC 488 (QB, Foster J)

It is increasingly common for UK consumers to travel overseas for cosmetic/aesthetic surgical procedures. On occasions, there is a sub-optimal outcome and this is sometimes because there has been causative (clinical) negligence by surgeon and/or clinic. The litigation (in the English courts) which can result from this has led to cases on jurisdiction (see, for example, Cole & Martin v IVI Madrid SL [2019] 9 WLUK 373 (QB)), on applicable law (see, for example, Naraji v Shelbourne [2011] EWHC 3298 (QB)) and even on foreign law questions about the party with whom the Claimant consumer/patient contracted: whether the performing surgeon or the clinic or both (see, for example, Pal v Damen & Others [2022] EWHC 4697 (QB) where Belgian law was applied to this contractual conundrum). However, it is rare to find an example of a case where an alleged incident of (cross-border) clinical negligence has given rise to a question about the standard of care to be applied to the surgical procedure in issue. The recent decision in Clarke v Kalecinski & Others (tried in June 2021 and reserved judgment published in January 2022: [2022] EWHC 488) provides an example of such a case.

Read the August 2022 TATLA Newsletter in full here