An Expert Guide To: Breach of Duty

Every medical professional, including those who carry out cosmetic surgery, owes a duty of care to their patients. When this duty of care is breached, it can have serious implications for patients, including long-lasting health issues and, in severe cases, even death. Understanding breach of duty is essential for those who have experienced or are dealing with medical negligence. In the following guide, we provide you with an in-depth understanding of what duty of care means, how it can be breached, and the steps you should take if you find yourself in this position.

With this knowledge, you can better navigate the legal landscape and make informed decisions about your health and rights. We aim to empower you with the knowledge to address any concerns about negligence and to seek the appropriate legal support when necessary.

Understanding duty of care and medical negligence

Duty of care is a fundamental legal obligation requiring cosmetic surgeons and medical practitioners to adhere to a standard of reasonable care while performing any act that could foreseeably harm patients. It is upheld by UK law, demanding that practitioners perform to a certain standard that is safe for patients.

In the context of cosmetic surgery, this means practitioners must inform their patients so they can make decisions about their circumstances, perform procedures with the skill, care, and diligence that is expected of a competent professional in the field, and offer good advice on aftercare procedures. Failure in any of these areas is considered medical negligence (also referred to as 'clinical negligence') and could lead to physical, psychological and financial consequences for patients.

Understanding breach of duty

A breach of duty occurs when a medical professional fails to meet the established standard of care, resulting in harm to the patient. This breach can stem from actions taken or not taken by the practitioner, which deviate from what is considered acceptable and safe practice within the cosmetic surgery field.

Factors considered in determining a breach of duty include:

• The professional standard: what would a competent, skilled and experienced professional in the same field have done under similar circumstances? If the answer indicates a deviation from accepted practices, a breach might have occurred.

• Causation: there must also be a direct link between the breach and the harm caused. This means demonstrating that the harm wouldn't have occurred if the care had met the acceptable standard.

The types of actions or inactions that might constitute a breach include:

• Inadequate patient assessment: failing to conduct a comprehensive evaluation of the patient's health or not considering their medical history before proceeding with a procedure.

• Poor communication: not providing clear, accurate and complete information about the risks, benefits, and alternatives to the procedure, therefore hindering the patient's ability to give informed consent.

• Technical errors during surgery: this includes errors made during the operation that a competent professional would not have made, such as incorrect incision sites or improper use of surgical tools.

• Post-operative negligence: failing to provide proper aftercare, not recognising or appropriately responding to post-operative complications, and inadequate follow-up care.

Where a surgeon fails to inform the patient about the serious risks associated with a particular cosmetic procedure, leading to unexpected complications; this lack of communication might be viewed as a breach of their duty of care. Similarly, if a surgeon performs a procedure for which they are not adequately trained or equipped, this too could constitute a breach of their duty to provide care at the expected level of competence.

It is necessary to differentiate between a breach of duty and an unfortunate outcome. Not all adverse results are due to negligence. Some procedures inherently carry risks, and complications can arise even with the highest standard of care. A breach occurs only when the care provided falls below the acceptable standard and directly causes harm or exacerbates an existing condition.

Identifying a breach of duty is a nuanced process involving a thorough evaluation of the standard of care provided compared to what is expected in the field. It involves linking that care, or lack thereof, directly to the harm experienced by the patient.

The consequences of medical negligence

Physically, it might lead to complications, additional surgeries, or long-term health issues. Psychologically, the impact can be equally severe, ranging from loss of confidence and body image issues to serious mental health conditions such as depression or anxiety. This can be especially upsetting for those who have chosen to have cosmetic surgery due to insecurities about themselves.

On top of these impacts, there are also likely to be financial implications. The most obvious is for the cost of the surgery, which will not only have been wasted but have gone towards a procedure that has caused a patient harm. From here, there may also be costs for further medical treatment and corrective surgery, travel to and from appointments, and funds lost from being unable to work.

What to do if you experience medical negligence

If you believe you have experienced medical negligence during or following your cosmetic surgery procedure, your health and wellbeing should be your primary concern. Seek medical attention as soon as possible. You should communicate any complications you experience to your surgeon, but you should seek advice from a different medical expert, such as your GP, if you believe the complications were caused by negligent treatment. This is not only vital for your health but also serves as a confirmation of your condition, which is necessary evidence if you decide to pursue a medical negligence claim.

From the moment you suspect negligence, start documenting everything related to your procedure and the aftermath. Keep a diary of your physical and emotional symptoms, take photographs of any visible issues, and collect all medical records and correspondence related to your treatment. This information will be invaluable in building your case.

After addressing your immediate medical needs, consult with a solicitor who specialises in cosmetic surgery negligence as soon as possible. Taking legal action might seem daunting, but it can help you recover the funds you have lost and provide compensation for the physical and emotional impacts of medical negligence. It holds medical professionals and institutions accountable for their actions, encouraging higher standards of care and preventing future incidents.

A cosmetic surgery negligence solicitor can:

• Evaluate the details of your case and advise on the likelihood of a successful claim

• Guide you through the process of gathering further evidence and explain the steps involved in making a claim

• Represent you throughout the legal process, aiming to secure the best possible outcome for your case

Time is a critical factor in negligence claims due to strict time limits for taking legal action, with the general rule being that claims must be started within three years of the negligent surgery happening or its effects being noticed. Make sure to seek legal advice as soon as possible.

Seeking legal advice for medical negligence claims

Cosmetic surgery negligence solicitors are professionals who understand the intricacies of the UK's medical law and can provide the expertise and support needed to navigate the complex legal process.

• Initial assessment: your solicitor will start by evaluating the details of your case, considering the evidence available, and advising on the likelihood of a successful claim.

• Gathering evidence: they can guide you through the process of gathering all necessary documentation, including medical records and expert opinions.

• Legal representation: experienced solicitors will handle all legal aspects of your claim, from drafting and filing paperwork to representing you in negotiations or court if necessary.

• Support and communication: they will keep you informed at every stage, providing clear explanations and support, ensuring you understand the process and are comfortable with the progress of your claim.

The team at Cosmetic Surgery Solicitors understands the sensitive nature of negligence claims in cosmetic surgery. We approach each case with empathy and professionalism, ensuring clients feel informed, supported and confident in their pursuit of justice and compensation.

Understanding clinical negligence compensation

As we have already discussed briefly, compensation for surgical negligence claims covers several aspects of the impacts that patients may experience. It is typically divided into two categories:

• General damages cover the pain, suffering, and loss of amenity experienced due to negligence. It accounts for both physical pain and psychological impact. The value of general damages depends on the type and severity of symptoms, ranging from hundreds of pounds to hundreds of thousands.

• Special damages cover specific financial losses incurred as a result of the breach, such as medical expenses, loss of earnings, and the cost of future care or treatment required due to the injury. To claim for special damages, you must provide evidence of your expenses.

Proving a breach of duty in a legal claim

Proving a breach of duty in cosmetic surgery negligence cases is a process that requires the collection and presentation of evidence. This may include:

• Medical records: these are essential for establishing the baseline of the patient's pre-procedure health and the details of the care received.

• Expert testimony: medical experts can provide an independent assessment of the standard of care received and whether it met the expected professional standards.

• Witness statements: testimonies from the patient, family members, or even staff present during the procedure.

• Photographic evidence: photographs taken before and after the procedure can help illustrate the extent of the harm or injury.

The process of making clinical negligence claims varies on a case-by-case basis, but typically follows the following general structure:

1. Consultation with a solicitor: discuss your case with a specialist solicitor who can guide whether you can claim, the likelihood of success and the evidence needed to substantiate it.

2. Gathering evidence: all relevant medical records, witness statements, and other necessary documentation are needed to build a strong case, proving the liability of the medical professional and the extent of the impact the negligent treatment has had on you and your life.

3. Submitting the claim: once enough evidence is gathered, your solicitor will help you formally submit your claim and handle all necessary communications with the involved parties on your behalf.

4. Negotiation: the majority of medical negligence cases are settled out of court. Your solicitor will negotiate on your behalf to reach a fair settlement.

5. Court proceedings (where necessary): in the rare event that a settlement cannot be reached in mediation, the case may go to trial, where a judge will make a final decision.

Seek advice from Cosmetic Surgery Solicitors

If you find yourself dealing with the repercussions of the negligent actions of a cosmetic healthcare professional, our expert solicitors can help you to seek compensation. To learn more about your options, simply call us today on 0808 296 3266 or use our online enquiry form to arrange a time for us to call you back.