‘the judge will be sensible’

Three weeks ago, many of my colleagues and I were stunned by the headline “patient sues her Plastic Surgeon for £54 million”.

In summary, the patient Mrs PJ underwent a facelift by Mr LRF in 2003. Mrs PJ sustained a nerve injury to the right side of her face which has left her with facial asymmetry.  Mrs PJ sues Mr LRF for negligence. Mr LRF has admitted liability.

In normal circumstance, Mr LRF’s medical defence insurance would have awarded Mrs PJ a sum of money for the actual injury itself and this is a fairly fixed and well regulated sum depending on the nature and severity of the injury (I have been informed that this has a cap of about £200 000).

The second part of the compensation covers the effects of the injury which includes things like expenses for corrective surgery, need for special care, loss of earnings etc. This has no cap. It is this second part that is in dispute. Mrs PJ claims that as a result of the nerve damage, she could not carry out her work as a co-director in her IT firm and her loss of earnings up to 2009 when the company went into litigation was £54 million.

The defence contests the claim that the failure of the company was wholly due to the injury and in the sum of £54 million. A counter offer of £9 million has been suggested. Mr LRF ‘s medical defence covers him for up to £10 million. Mrs PJ’s lawyer’s fees have already accrued to £3 million.

The judge has to decide on a figure between the £9million and the £54 million and the decision can influence significantly the face of healthcare in the UK.

Fact – Complications can occur in any form of surgery not just cosmetic surgery. It is inherent in the nature of the work which is why all surgeons subscribe a significant portion of their earnings to a medical defence insurance. Whilst financial compensation cannot turn back the clock, it can go some way towards alleviating some of the problems caused by complications. As surgeons, we can only do our utmost to avoid complications but more importantly, when it does happen, we own up to it and are professionally accountable.

Fact – When patients consent to a surgical procedure, they must make an informed decision about the nature of the surgery and the possible complications. If complications do occur, the patient must hold some accountability for the decision to have the surgery. It does not and should not rest solely on the shoulder of the surgeon.

Fact – £54 million is more money than any of us will ever see in several lifetimes. An irate young colleague of mine has put things in some perspective when he commented that soldiers fighting for their country, returning with limbs missing and other horrendous injuries do not receive anywhere near a fraction of this amount (a soldier who lost both legs and suffered 37 injuries when a landmine exploded was awarded just £152,150).

Fact –  Mr LRF is a well respected and established Plastic Surgeon, member of both the British Association of Plastic, Reconstructive and Aesthetic Plastic Surgeons(BAPRAS) and British Association of Aesthetic Plastic Surgeons(BAAPS). He frequently donates his time correcting facial deformities on NOMA victims in Ethiopia. All Plastic Surgeons know that facial nerve complications although rare can happen to any one of us.

Fact – Lawyers are the only real winners in these cases. £3 million!!!

If the judge awards an amount that is more than what Mr LRF is insured for, he is likely to face bankruptcy in addition to the damage that has already been done to his reputation. The medical defence insurance companies are likely to put up their premiums. Many Surgeons may decide that the price is too high to pay and drop out of the race and others will raise their fees to cover the higher premiums and practise even more defensive medicine. Patients will end up paying much higher fees for any procedures or be refused surgery if there is any hint of potential problems. Lawyers will advertise even more enthusiastically their ‘no win, no fee’ slogans.

Is this what we want in our healthcare system?. 

A bunch of us, Plastic Surgeons from BAPRAS, BAAPS and UKAAPS have been discussing this case over the past 3 weeks whilst awaiting the court’s decision. The mood has swung from one of shock and anxiety to hostility to one of quieter reflection.

It is every patient’s right to be be protected by the law and to seek compensation financially and emotionally when things go wrong. We are also unanimous in our support of a colleague who has owned up to a mistake and willing to make that recompense. That does not mean that he needs to be annihilated in the process. There is much that he has done to contribute to society and can continue to do so

In this particular case, my colleagues and I are hopeful that the presiding judge, in all his wisdom, will come to a sensible decision. Anything else will have a significant impact on how medicine is practised in this country. 

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