Monday, 16 September 2013

Contractual Terms for Private Surgery

A large number of surgical procedures, including cosmetic procedures, are performed each year under contract. The fact that a patient is paying for surgery or treatment does not, by itself, mean that he/she is entitled to expect a higher standard of care and skill from their surgeon than if they had undergone the procedure within the NHS. 

Nevertheless, private providers do sometimes make claims for the excellence of their services. Certain representations may be made in pre-operative consultations which persuade the patient to enter a contract and pay for surgery. What effect do these have on the contractual obligations of the provider?

We are all used to warranties or guarantees for certain products but most (reasonable) people will know that the performance of surgery cannot be guaranteed in the same way as the performance of a new fridge-freezer. In relation to medical or surgical services, it will be very difficult to establish that the surgeon or provider guaranteed a certain outcome. As the court noted in Thake-v-Maurice [1986] QB 644,

"The reasonable man would have expected the defendant to 

exercise all the proper skill and care of a surgeon in that 

speciality; he would not in my view have expected the 

defendant to give a guarantee of 100 per cent. success."

Even if a provider promised "you will be happy with the result", or "we will make you look like Brad Pitt", it is highly unlikely that a court would find that a patient had relied on those statements such that they became terms of the contract or warranties! That is not to say that pre-contractual representations are irrelevant to issues of consent. Patients' expectations should always be carefully managed.

An alternative approach is to contend that the contract imposed a higher standard of care on the surgeon than would be expected in tort. However, two recent cases do not encourage that approach either.

In Silverstone-v-Mortensen and Oxford University Hospital NHS Trust [2012] EWHC 2706 (QB) the Court considered whether a term could be implied into a contract for surgical services which would affect/raise the standard of care of the surgeon concerned. The Judge dismissed that suggestion:

"34. ... it is pleaded that Professor Mortensen would exercise the skill and care of a world authority in [his surgical management of the case]. This does not add anything to the ordinary duty in contract and tort that the surgery would be performed to the standard expected of a competent consultant surgeon in a major teaching hospital."

In Dove-v-Jarvis Unreported, Mr Justice Gouldie QC High Court, 6.2.13 had to consider a contract for private surgery by way of a hip replacement. It was claimed that there was a contractual term that the surgery would be "well done". The Judge noted that it was common ground that in tort and contract the standard of care to be expected was that of a surgeon experienced and expert in performing hip arthroplasty [28]. 

This was a high standard and not the medical equivalent of "a small firm of country solicitors" [a slightly quaint analogy, perhaps]. The Claimant contended that the assertion that the surgeon would be "well done" gave rise to a contractual obligation to exercise a higher standard of care. It was not alleged that it gave rise to a warranty. The Judge rejected the contention.

"[66] Contract does not in this instance convert a losing case on the duty of skill and care into a winning one."

In my view, such discouragement notwithstanding, there may be implied terms, perhaps falling short of warranties, as to outcome or the standard of care and skill, which arise from pre-contract representations. This may occur in the field of cosmetic surgery, for example. Suppose a breast surgeon agrees with the patient that he will use implants to enlarge her breasts to a C-cup and he makes them much larger. Or, the patient is told that the surgeon is particularly skilled and experienced in producing fine, pale scars but the suturing is done to a standard which would be considered acceptable for the normally competent surgeon, but not for a specialist in producing pale, fine scars? 

If a patient has shopped around and is willing to pay 50% more for a particular surgeon because he has been held out as one of the world's leading surgeons in the field of rhinoplasty, why should the patient expect the same standard of care and skill as from the surgeon up the road charging much less and not making such representations?

This is surely an area of law ripe for further judicial consideration. The courts will be more inclined to find that there was a contractual promise which went beyond the duty of care in tort where (a) the representation made a real difference to the choices made by the patient, (b) it was reasonable to rely on it, and (c) the finding would make a material difference to the outcome of the legal claim.

1 comment:

  1. Patient expectation is often complex and convert. Expectations are often bound up with a generation of misleading advertising set against a backdrop of an unregulated industry. Society can not expect patients to be realistic when surgical prices are often unrealistic and framed in misleading advertising.