Medicolegal Implications of Cosmetic Surgery Cosmetic or aesthetic surgery is a constantly expanding market, and one which has also flourished in Northern Ireland in the last number of years. By its very nature, cosmetic surgery differs from procedures performed in hospitals throughout the country on a daily basis. Cosmetic surgery is elective, and entails a choice being made by a patient to go ‘under the knife’ in order to achieve a desired result. That being said, cosmetic surgery is still surgery, and carries with it a number of significant risks, the greatest of which is of course, death.
In the last decade or so, cosmetic surgery has taken on a new feature, with the development of ‘surgical tourism’, whereby vast numbers of patients venture abroad for procedures at a reduced cost. Whilst the potential risks inherent in opting for surgery in a foreign country without knowledge of the surgeon or the medical practices has been well documented, the fact remains that within the UK itself, cosmetic surgery remains a largely unregulated market.
In reality, very few countries have systems of regulation in force and whilst there have been attempts at instituting a system of regulation in this jurisdiction, to date there is still no compulsory registration or one regulatory body responsible for overseeing cosmetic surgeons. Cosmetic surgery is not a recognised speciality and as such there is no specific training required. In most cases the only safeguard put in place is a requirement by the admitting hospital or practice that the surgeon be a member of the GMC Specialist Register. A number of proposals have been made to rectify this situation, but at present none have been enacted.
The most popular forms of cosmetic surgery which patients opt for include breast implants or reduction, rhinoplasty, facelifts and liposuction. Each of these procedures run the risks associated with surgery: heavy blood loss, bruising, infection, deep vein thrombosis, wound healing problems, scarring, haematoma, pulmonary oedema and death. However, much litigation arising out of cosmetic surgery derives from the concept of informed consent. The 2004 House of Lords case of Chester v Afshar made it abundantly clear that a patient has the right to be fully informed of the risks inherent in any surgery before embarking upon same.
Since that case, the doctrine of consent has become a key question for consideration in almost every case of medical negligence. It becomes particularly relevant in cases involving cosmetic surgery, where the patient is specifically opting to undergo a procedure to achieve a desired aesthetic outcome. Most medico-legal disputes centre on what information was given to the patient at the initial consultation. Therefore, whilst surgeons can be sued for poor surgical performance or substandard post-operative care, in reality it is most frequently the lack of informed consent that leads to allegations of negligence.
Patients whose initial expectations are not met frequently resort to litigation. For these reasons, the burden of proof on a surgeon undertaking to perform cosmetic surgery is generally thought to be of a higher standard than that which applies to an NHS doctor. Case law has highlighted the importance of fully informed consent in the encounter between the cosmetic surgeon and the patient. In one English case, Christine Williamson v. East London and the City Health Authority & ORS, a patient was awarded damages for medical negligence after her surgeon performed a mastectomy rather than replacing her silicone breast implants.
In another case, O’Keefe v. Harvey-Kemble, the English Court of Appeal held that the surgeon had not informed the claimant of the risks associated with breast implants, most notably the very high risk of encapsulation which in fact ensued. Had she been so informed it was found to be more than probable that she would not have chosen to undergo the original operation. She would not then have had to undergo a further seven painful and distressing operations. The surgeon was also found not to have assessed the aspirations of the patient as to outcome or to have given proper written advice about risks for her to study at a later date.
It follows from this that when a patient is opting for cosmetic surgery, the initial consultation between the patient and the doctor should provide an opportunity for a detailed discussion of the patient’s expectations, the procedure and the risks involved. It should be emphasised that cosmetic surgery remains surgery nonetheless and that the risks involved are real. In this type of surgery in particular there is an obligation to minimise expectations. The patient should be advised realistically of what they can achieve from the surgery and what is simply unattainable.
In order to ensure that this is the case, the surgeon should seek to understand the patient’s concerns to establish if they can be satisfied. A particular risk that should be discussed at length in all cases of cosmetic surgery is the potential for scarring. It should be emphasised that the simple fact that someone is left with scarring following a procedure does not in itself equate to negligence on the part of the surgeon performing the operation. Complications can occur even with the best care in the world having been provided.
However, a failure to have provided the patient with a warning in this regard may indeed lead to an actionable claim on the part of a patient. It is highly advisable that a cosmetic surgeon advise a prospective patient of the alternatives to the procedure which they are to undergo. It also to be recommended that a pre-operative photograph be taken and that the pre-operative assessment take place a few weeks prior to the surgery, rather than on the same date. All things considered, it would appear that the key to success in cosmetic surgery is in awareness of clinical risks and the effective management of same by the surgeon.
