An update on medical tourism claims: Ashamu v Get Slim in Turkey [2025] EWHC (QB)

This case note by Dominique Smith, who acted for the claimants, explains the factual basis of this cross-border clinical negligence claim and provides analysis about the significance of the judgment. Dominique was instructed by Phil Banks, Carly McGill and Daniella Preger of Irwin Mitchell. 

Last week, the High Court considered the applicability of the Package Travel and Linked Travel Arrangements Regulations 2018 (“PTR 2018”) in a cross-border clinical negligence case, namely Ashamu v Tracey Ozdemir T/A Get Slim in Turkey (2025) EWHC (QB). Whilst this case is unusual on the basis in which it was defended, it provides an interesting insight as to how the courts are grappling with the Regulations in cross-border clinical negligence claims. 

Factual background

The Deceased, who was aged 26 at the time of her death, had decided to enquire about gastric bypass surgery and gastric sleeve surgery in 2018, due to concerns she had about her weight. She located the Defendant’s business online and proceeded to enter into correspondence with them about their surgical packages. The Defendant was offering multiple types of surgical package, which included accommodation at a hotel, transfers, tests, surgery, and aftercare, at an all-inclusive price. The Deceased decided to book a gastric sleeve package and was informed that she needed to book her own flights before the package could be booked. She proceeded to do so and was subsequently sent a booking confirmation and medical form by the Defendant. Whilst she had initially booked the gastric sleeve package with the Defendant, she amended this to the bypass package (which was the same package albeit a bypass rather than a sleeve, at no extra cost).

The Deceased subsequently flew to Turkey on 31^st January 2019. She proceeded to undergo the bypass at Ekol Hospital on 1^st February 2019 under the care of Dr Yaman. On 3^rd February 2019, she was taken to theatre for a further exploratory surgery due to concerns about intestinal dilation and was then taken to ICU for observation. However, from the Deceased’s arrival to ICU at 19:05 hours to 19:55 hours, no monitoring information was recorded. The Deceased was subsequently discovered in cardiac arrest at approximately 19:55 hours. CPR was undertaken and she was thereafter in a coma. It later transpired that she was in fact tragically brain dead. She was subsequently pronounced deceased on 9^th February 2019.

Proceedings were ultimately issued against the Defendant in February 2022, bringing a claim under the PTR 2018 and, further or alternatively, on the basis that there was a consumer contract in existence.

Unusually, the Defendant’s Defence failed to deal with numerous allegations in the Particulars of Claim. The Defendant was ultimately deemed to admit the following, pursuant to CPR 16.5:

• that English law applied;
• that there was a consumer contract in existence between the Deceased and the Defendant and that the Deceased was a consumer;
• the consumer contract contained implied terms that the surgeries, treatment and aftercare would be performed with reasonable skill and care;
• causation; and
• the Particulars of Injury.

The Defendant’s position in its Defence hinged on the applicability of the PTR 2018. The Defence advanced that the Defendant was an ‘introducer’ and that the PTR 2018 was inapplicable on that basis.

The Defendant did not file a counter-schedule of loss, either with the Defence or in accordance with the court directions. As such, quantum was not challenged. In addition, the Defendant did not file any expert evidence, did not ask any Part 35 questions of the experts, and did not make any application to call the experts to trial. Consequently, the Claimants’ expert evidence was uncontroverted.

Days prior to trial, the Defendant conceded that she was a retailer under the PTR 2018 yet contested that there was a package travel contract in existence. In addition, the Defendant put forward a new argument that the hospital was in fact the true contracting party.

The trial came before Ms Justice Obi. At trial, the Defendant confirmed that causation and quantum were not in dispute. However, during opening submissions, the Defendant attempted to retreat from the deemed admissions and advanced a case that was not pleaded. Submissions were made that there was no package travel contract in existence, despite the acceptance of retailer status before trial, and that there could not be a contract in existence due to a lack of consideration. No formal application had been made to amend the Defence to the date of trial. Ms Justice Obi summarily refused permission to amend the Defence, given the lateness of the application, the lack of any explanation as to the delay in making such an application, and the prejudice that would be caused to the Claimants.

At the conclusion of the trial, Ms Justice Obi considered the PTR 2018 and whether the Defendant was a retailer, or whether the Defendant was an organiser as the Claimants alleged. She accepted that the Defendant was in fact an organiser, selling and offering for sale packages at an all-inclusive price that combined surgery, transfers, multi-night hospital accommodation and hotel accommodation, and aftercare. There was nothing to suggest in the marketing material and contractual communications with the Deceased that the true contracting party was the hospital. The Defendant had accepted she was selling surgical packages and utilised language in marketing and contractual communications including “our surgeon” and “we”, which was inconsistent with the role of a mere introducer. Further, the Deceased made a single payment upon arrival to the hospital from which the Defendant received a payment. Ms Justice Obi noted that the Defendant’s position had shifted over time and that the Defendant had conceded retailer status under the PTR 2018, which presupposed the existence of a package. Irrespective of the Defendant’s assertions, Ms Justice Obi was of the view that the Defendant was an organiser within the meaning of Regulation 2(1). Notwithstanding that, in her findings, she considered that the tourist service under Regulation 2(6) was medical tourism as the surgery accounted for a significant proportion of the combination and was an essential feature of it and did not accept the Defendant’s arguments that hospital accommodation was not accommodation (albeit, there was also hotel accommodation included in the package).

Whilst the Defendant attempted to argue at trial that there was no sufficient consideration (although it was again not pleaded), Ms Justice Obi disagreed. As such, liability was made out under the PTR 2018. In any event, she considered that liability would arise under the consumer contract route irrespective of whether her analysis of the PTR 2018 was correct as a result of the deemed admissions.

Finally, the Defendant had raised an argument about agency at trial, alleging that the Defendant was an agent for Ekol Hospital. Ms Justice Obi noted for completeness that the Defendant had not clearly identified Ekol Hospital as the principal to the contract. On that basis, she did not consider the agency argument had merit, as the principal to the contract was undisclosed thus the Defendant would be liable for the performance of the contract.

Consequently, the Claimants were awarded damages in excess of £800,000.

Analysis

This was an unusual case, but one which brings some clarity to the meaning of tourist services under the PTR 2018 and to the meaning of accommodation. It would be unusual in this author’s view if tourist services did not include medical tourism, given the breadth and scope of this tourist activity around the world. It is also interesting to note the court’s view that hospital accommodation can fall within the meaning of accommodation under the PTR. That said, this was a case in which the package included hotel accommodation in any event.  

It appears that more cases of this nature are likely to come before the courts, given the growing popularity of surgery abroad, and it will be interesting to see the growing jurisprudence on the PTR 2018 and its interaction with cross-border clinical negligence claims.