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PI Focus: Expert Evidence in Cross Border Clinical Negligence Claims

Articles | Fri 15th Sep, 2023

We have previously written about the particular considerations pertaining to expert evidence in claims involving either foreign law or a foreign jurisdiction, but one area which bears further scrutiny is the rapidly developing field of cross border clinical negligence claims. So-called ‘medical tourism’ is now so prevalent, and the risks associated with it so great, that in December 2022 the Foreign, Commonwealth and Development Office issued a travel advisory stating:

“The term ‘medical tourism’ refers to those tourists who have chosen to have medical/surgical/dental treatment abroad. Cosmetic surgery, dental procedures and cardiac surgery are the most common procedures that medical tourists undertake. The standard of medical facilities and available treatments vary widely around the world. As such, British nationals considering undertaking medical treatment in Turkey should carry out their own research; it is unwise to rely upon private companies that have a financial interest in arranging your medical treatment abroad. We are aware of 22 British nationals who have died in Turkey since January 2019 following medical tourism visits. If you are travelling to Turkey to undertake a medical procedure we would advise you to refer to the HealthTurkiye portal website for medical providers who are approved by the Ministry of Health.”

Notwithstanding this warning, the lure of reasonably priced surgery continues to hold sway over UK nationals, and never more so than at a time when NHS waiting lists seem to get ever longer and strikes seem likely to cause even more delays in treatment. Social media surgery accounts and websites that proudly parade modestly priced yet transformative results of surgical procedures undertaken abroad have tempted even the most cautious of consumers out of the jurisdiction and into privately funded treatment abroad.

But what happens when these procedures go wrong? Common complaints include:

  • Failure to consider whether the procedure selected is in the best interests of the client. Different nations appear to have different cultural mores as regards whether a capacitous adult should be able to select a desired treatment and simply choose to undergo it, or whether (s)he should be encouraged to think about whether the procedure is necessary at all, or whether other treatments might be more suitable.
  • Failure to consent the client adequately or at all. It is difficult enough for a treating consultant who sees a patient well before booking surgery to obtain informed consent. In a cross border setting, the patient will recently have travelled to the treatment venue, will often be unaccompanied, and may be disorientated by the unfamiliarity of his or her surroundings. It is not unheard of for consent forms in these claims to be presented for the first time just moments before surgery. Furthermore, although it is perfectly understandable that a Turkish clinic might use standard consent forms in the Turkish language, these will be of no assistance to an English consumer who does not speak Turkish but who nevertheless signs the form because this is a necessary prerequisite to undergoing the procedure.
  • Language barrier. The authors are aware of a number of cases arising out of the inability of the patient to communicate directly with the surgeon who is to perform the desired surgery. In some cases, a completely different procedure has been performed whilst the patient was under general anaesthetic. In others, the patient has only communicated to the surgeon via an unofficial translator from a clinic, such that what the patient was striving for has been entirely lost in translation.
  • Failure to provide adequate emergency care or aftercare. Not infrequently in foreign surgery cases the patient is provided with very little by way of aftercare, sometimes leading to infection and other complications. Moreover, the provision of emergency care varies very widely between jurisdictions, and sadly in the event of a serious complication this can be critical to the patient’s survival. Generally consumers who undergo a procedure outside the jurisdiction will be expected to return to the UK within a few days of surgery, irrespective of any symptoms they may report in the aftermath of treatment. This can in itself create a risk not inherent to the procedure as such.

It is possible to bring a claim for clinical negligence occurring abroad within the jurisdiction of England and Wales and (in some particular circumstances) under English law, but in order to do so the claim must be supported by expert evidence. The question therefore arises: must the expert practise in the jurisdiction in which the surgery was performed, or where the consumer entered into the contract for the surgery?

Take, for example, the case of a Claimant who travels to Poland to undergo breast augmentation and uplift and liposuction to her thighs. If the treatment had occurred within the jurisdiction her solicitors would obtain expert reports as to causation and breach and as to prognosis. The former would address the question of whether a responsible body of medical opinion would agree that the treatment provided reached an acceptable standard. But where the surgery has been performed in Poland, is it necessary to obtain a report from a Polish surgeon as to what a responsible body of Polish medics might make of what happened?

This question was answered by Forster J in the case of Clarke v Kalecinski & Others [2022] EWHC 488 (QB). The Claimant brought actions in contract (to which English law applied) and tort (to which Polish law applied) against the operating surgeon (“D1”); the clinic where the operations were carried out and where the Claimant received pre- and post-operative treatment (“D2”); and the insurer of the clinic (“D3”).

In the summer of 2014, the Claimant sought breast augmentation and uplift and thigh liposuction procedures. She conducted internet research and found europesurgery.uk.com, which advertised consultations in England followed by surgery in Poland provided by UK-trained, UK-registered surgeons, most prominent among them, D1. The Claimant’s evidence was that she was reassured by the suggestion that D1 used to practice in the NHS and was registered with the GMC. The contract was agreed with the agents of D2, who were based in England. There was an initial consultation in London with D1 and the Claimant subsequently travelled to Poland to undertake the surgery.

After the surgery, the Claimant reported symptoms indicative of sepsis. She attended the clinic a number of times about these symptoms but she was not provided with adequate post-operative care; she attended the clinic again with a fever and agonising pain and ultimately D1 removed the implants and drains were put in. After the remedial surgery, however, the Claimant’s symptoms persisted, and she was unable to contact the emergency numbers that were given to her. The Claimant decided she needed to go back to the UK despite the fact that her condition was increasingly severe. Upon her arrival, her mother took her immediately to A&E, where she was diagnosed with severe and potentially life-threatening sepsis. She underwent immediate surgery to clean the wounds and further surgeries thereafter to remove the necrotic and infected tissue.

The Claimant brought actions against D1, D2 and D3 in both contract and tort. Whilst a Defence was filed on behalf of D1 and D2, they did not otherwise engage in the proceedings. 

The Claimant relied upon three expert medical reports, two of which were from Mr Urso-Baiarda, a plastic surgeon whose practice includes the management of life-threatening soft-tissue infections. Mr Urso-Baiarda considered that the treatment provided to the Claimant pre-operatively was inadequate and that the Claimant’s post-operative symptoms provided an ample basis for an urgent return to theatre with a suspected infection at her first post-operative attendance; that these issues were amplified with each subsequent attendance; and that the treatment provided by D1 and D2 fell far below an acceptable standard. Mr Urso-Baiarda observed that D1 did not in fact have the experience of an NHS consultant and that (as far as he could see) D1 had no specialist training in plastic surgery nor relevant qualifications.

D3 submitted at the trial was that it was not possible to be critical of D1 or D2 in this case because an English standard of care – that is, the standard identified in the Claimant’s expert reports – could not be transposed to an alleged breach of duty in a foreign location. This argument drew on the requirement for local standards evidence in package travel cases: see, for example, the decision of the Court of Appeal in Lougheed v On The Beach [2014] EWCA Civ 1538. Forster J concluded that there was nothing in this submission. The key findings were: (1) it was a term of the contract that D1 would operate to the same standard as a UK surgeon registered with the GMC and, therefore, this was the standard which should be applied to the activities in issue; and

(2) even if that was wrong, the expert’s findings were couched in such stringent terms that it could be safely determined that there would be a breach whether the standard was English or Polish.

In respect of (2), the Claimant’s counsel noted that in Lougheed reference was made to egregious, blatant and life-threatening situations where evidence as to local standards was irrelevant. Forster J held that the instant case was an example of such a scenario. Otherwise, however, the Judge made no decisive finding as to “the applicability of the tour operators case to the concepts arising in medical negligence”, though it was stated that she would be inclined “to the view that they are inapplicable in such a context given the notion of a package holiday, and the policy reasons behind the case law that has been discussed”.

Forster J found accordingly that the Claimant had proved her case in contract as well as tort. Mr Urso-Baiarda’s report identified significant failings in both the pre- and post-operative care. These failings fell ‘far below an acceptable standard’ and there was ample evidence on which to conclude that the standard of care applicable to the tortious obligation under Polish law and/or the contractual obligation under English law had been breached. Accordingly, there was judgment for the Claimant for the sums sought, save that D3’s liability was capped at the sum specified in D2’s policy.

Kalecinski is a helpful judgment in pointing practitioners to the requisite evidence needed to support these claims. However, if there is no term of the contract that stipulates that the standard of care is to be as the same standard of a practitioner in the UK, or if the Claimant is not in an egregious, blatant or life-threatening situation, it is highly likely evidence that evidence of breach of duty will be required from a foreign medical expert.

Conclusion

We anticipate that the growing trend of seeking surgery abroad will continue. As too therefore will the likelihood of these claims landing on our desks. When considering a cross border clinical negligence claim, it is not only important to assess from the outset issues relating to jurisdiction and the law applicable to the claim, but also what expert evidence is needed to best prove negligence. As Kalecinski indicates, the answer to that question will not be the same in every case. Practitioners must carefully think about the following issues when considering whether foreign or domestic expert evidence is required:

  • Is there a term of the contract that stipulates the standard of care the clinician will adopt? If not, is there any correspondence or any information on the clinic’s website or advertising material that details the applicable standard of care?
  • What is the law applicable to the claim in tort and/or in contract?
  • Was the claimant in an egregious, blatant or life-threatening situation?
  • Did the failings in care not only fall below the standards in that country, but far below any globally acceptable standard?

These questions should assist practitioners in identifying the relevant experts needed to progress the claim.

This article was first published in PI Focus, July 2023.

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