There are few cases dealing with breach of duty in cross-border clinical negligence litigation. However, the rising number of claims arising out of botched cosmetic surgery carried out abroad means that this is an issue of increasing significance.

Clarke v Kalecinski & Ors [2022] EWHC 488 (QB) is an interesting and timely decision. Foster J highlighted one of the difficult choices the courts will have to make when determining which standards will apply when judging medical practices overseas.

The Claimant alleged that she had suffered injuries as a result of negligent thigh liposuction and breast augmentation procedures carried out by a surgeon at a clinic in Poland.

She brought claims in contract and in tort against the surgeon, the clinic, and the clinic’s insurer.

In the end, no challenge was made to the Claimant’s account. Her evidence and that of her experts was accepted in full. Suffice it to say that her account of the quality of the treatment she received was fairly shocking.

There was an interesting discussion about whether the Claimant had entered into a contract for her surgery and who exactly the Claimant had contracted with.

I am not going to comment on that here except to say that I recommend that practitioners in this area read the analysis at [77]–[83] to see what factors the judge considered relevant in resolving this issue in circumstances involving a distinct lack of relevant evidence.

The part I am interested in concerns the relevance of the safety standards applicable in Poland.

The insurer made the argument (based on an analogy with package travel cases) that

in medical negligence cases it is necessary to be specific as to the role and circumstances of the individual professional, advanced to the proposition that only local standards of medical operation were relevant in case of medical negligence performed abroad.

It was essentially said that an English standard of care could not be transposed to an alleged breach of duty in a foreign location.

In fact, counsel for the insurer went so far as to say that the logical endpoint of the package travel jurisprudence was that “a claimant was required to produce evidence of local standards of care in any claim for a foreign tort.”

By analogy, the claimant in the current case had adduced no evidence of a Polish standard and therefore her claim must fail. This court is required to find a standard of care applicable to this Polish surgeon operating in Poland, absent such proof, the claim would fail.

Foster J had an easy way of sidestepping the issue on the facts of this case. She found that the surgeon (via his website) had undertaken to operate to the standard of a UK surgeon:

In my judgement in the context of this case, where it is a term of the contract that the first defendant would operate to the same standard as a UK surgeon, skilled in this specialism, and registered with the GMC, it is that standard, that applied to the activities in issue here. The care offered by the clinic likewise.

Also, even if Foster J were wrong about that, she held that the failures in this case were so bad that they “put paid to any subtlety of distinction between local custom and English practice”.

What took place fell so far below acceptable standards I cannot accept the contention that local standards or practices might have rendered the egregious failings in this case acceptable as a matter of contractual or tortious obligation.

Foster J therefore said “nothing decisive upon the applicability of the tour operators cases to the concepts arising in medical negligence.”

However, she inclined “strongly to the view that they are inapplicable” given the differing policy reasons underlying them.

Is that (obiter) comment convincing? Maybe, but I am not so sure.

Can it fairly be said that a foreign medical professional has failed to exercise due care if he or she has followed accepted policy and practice in the relevant foreign country simply because it would not meet the relevant (different) standard in the UK?

Maybe medical negligence is a special situation, where there is more mileage in an argument that good practice is a matter of objective fact and should not vary across borders.

But given that the entire basis of the Bolam test is the need to cater for the reasonable differences of approach that exist in just the UK (rather than across the entire world), that seems a difficult argument to maintain.

And why should universal safety standards apply to the highly complicated field of medical treatment any more than they should to something simpler and more mundane, like the mopping of floors in hotels?

I actually think that the key here was this postscript comment by the judge:

Further, in any event there is no suggestion from the Polish law expert that there is a measurable difference in the standards applied in Poland in medical negligence cases and those in England.

It will be interesting to see what a judge makes of the situation where the evidence does identify a measurable difference in standards.

James Beeton Clinical Negligence

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