Clarke v Kalecinski & Others  EWHC 488 (QB, Foster J)
It is increasingly common for UK consumers to travel overseas for cosmetic/aesthetic surgical procedures. On occasions, there is a sub-optimal outcome and this is sometimes because there has been causative (clinical) negligence by surgeon and/or clinic. The litigation (in the English courts) which can result from this has led to cases on jurisdiction (see, for example, Cole & Martin v IVI Madrid SL  9 WLUK 373 (QB)), on applicable law (see, for example, Naraji v Shelbourne  EWHC 3298 (QB)) and even on foreign law questions about the party with whom the Claimant consumer/patient contracted: whether the performing surgeon or the clinic or both (see, for example, Pal v Damen & Others  EWHC 4697 (QB) where Belgian law was applied to this contractual conundrum). However, it is rare to find an example of a case where an alleged incident of (crossborder) clinical negligence has given rise to a question about the standard of care to be applied to the surgical procedure in issue. The recent decision in Clarke v Kalecinski & Others (tried in June 2021 and reserved judgment published in January 2022:  EWHC 488) provides an example of such a case.
In Clarke v Kalecinski the relevant surgical procedure was breast augmentation and mastopexy (uplift) and thigh liposuction. The Claimant consumer/patient was a UK national domiciled (at all times relevant to the litigation) in England. The Claimant's surgery was performed by the First Defendant: a Polish national domiciled in Poland. The First Defendant was registered with the General Medical Council in the UK and with the equivalent body in Poland. The Claimant's surgery was performed (and the relevant post-surgical after-care was provided) at the Second Defendant clinic: owned by a company incorporated in Poland. The Third Defendant, a Polish insurance company, was the insurer of the Second Defendant.
As to the background facts, in August 2014, the Claimant contracted for the cosmetic surgery procedures. She attended a consultation with the First Defendant in London in late November 2014 before flying with her mother to Poland for the surgery itself. The scheduled surgery took place under general anaesthetic and, after a night in the Clinic (and an examination by the First Defendant the following day), the Claimant was discharged to her Hotel accommodation. Very shortly after being discharged from the Clinic (in the evening of the same day), the Claimant felt feverish with aches and chills. These symptoms continued and were accompanied by severe and distressing pain at the operation sites. The Claimant subsequently attended the Polish Clinic and was seen by nurses and a surgeon (who mentioned “infection” and appears to have prescribed antibiotics among other medication), albeit (not initially) by the First Defendant. The Claimant was later seen by the First Defendant who examined her before discharging her. The Claimant's pain and distress continued and she was re-admitted for observation at the Clinic before a decision was made to remove the breast implants (which then took place). The Claimant then returned to the UK and, given her condition, was immediately taken by her parent to a UK Hospital where she was admitted (ultimately, to ITU). The Claimant remained a Hospital in-patient in the UK (during which time she underwent a succession of operations to clean her wounds and treat infection/severe sepsis). In July and December 2015 the Claimant underwent reconstruction surgeries. In addition to scarring and other physical symptoms, the Claimant experienced a psychological/psychiatric reaction to these events and their outcome.
It was the Claimant's case that the surgery (and the associated medical care both pre- and, in particular, post-operatively) was sub-optimal and negligent and that this had caused her injury, loss and damage. She pursued a claim in tort against the Defendants (and, additionally, in contract against the First and/or Second Defendants).
The litigation gave rise to a number of issues: among them, the applicable law of the Claimant's claim in tort and the identity of the parties with whom she had contracted. The Court also had to resolve the issue of breach of duty/contract (which it did, in the Claimant's favour). However, the legal novelty of this decision focusses on the Third Defendant's argument as to the appropriate standard of care in the context of the application of Polish law.
The Claimant's argument at Trial was a straightforward one. First, she relied on expert evidence in the form of a report into the liability issues from a Consultant Plastic Surgeon based in England (and with English qualifications and experience) to the effect that the treatment provided to her was “inadequate” preoperatively, that there was evidence of a “systematic failing” in the operative care and that the level of care “fell well below an acceptable standard” in the postoperative period (all of which combined to cause serious injury to the Claimant). Second, the Claimant relied on expert evidence from a Polish lawyer which, as to the Polish law standard of care (in a fault-based system of liability), provided that, “… in order for fault to be attributed to a person, their act or omission must be unlawful. Unlawfulness is further defined in the literature as breaking any provisions of the law, or breaking common and universally binding – although non-codified – norms that prohibit behaviour which causes damage to another person.” Further, “… under Polish law even the slightest negligence arising from the slightest fault is sufficient to satisfy this particular prerequisite to tort liability”.
The Third Defendant's argument as to the standard of care, identified for the first time in its skeleton argument for Trial, was that the claim must fail because – by necessary and appropriate analogy from the “package holiday” cases on local standards (see, for example, Wilson v Best Travel Ltd  1 All ER 353 (QB) and Lougheed v On the Beach Ltd  EWCA Civ 1538) – the Claimant had failed to adduce expert evidence as to the Polish standard to be expected of a competent surgeon/clinic (the corollary of this was that a liability report from a surgeon based/qualified in the UK was insufficient for the Claimant to succeed in the claim). The Claimant's response was that this argument lacked foundation in law:
- The underlying contract made it clear (in the form of promotional/marketing representations incorporated as terms) that UK consumers could expect a UK standard of surgical and associated care;
- The Claimant was entitled to rely on ample evidence of breach of duty (and there was no evidence – expert or otherwise – that the standard to be expected of a Polish plastic surgeon differed from his/her UK equivalent);
- There was no necessary or appropriate analogy between a contract for surgical treatment (involving a specific consumer/patient and surgeon/clinic) and a package holiday contract (for accommodation in an Hotel where consumers from across the world might stay) – accordingly, the policy justification for the “local safety standards defence” in a package holiday context was wholly missing in a contract for elective surgery;
- Certain instances of clear/egregious negligence (in a package holiday context) did not require expert evidence as to local safety standards (see, Lougheed); and, in any event (and insofar as relevant),
- It was by no means clear that a package holiday claim would fail for want of expert evidence as to the local safety standard in the light of recent case law like TUI UK Ltd v Morgan  EWHC 2944 (Ch).
The Trial Judge dealt with the Third Defendant's arguments in the following terms in the course of her judgment (paras 107 – 111):
“The claimant, (not without some justification) described the developed argument on this point as an ambush - it had been mentioned only in the skeleton argument delivered just before trial. There is in my judgement however nothing in it. The pleadings identified the defendant's agreement to the asserted standard of reasonable care and skill. 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. … That standard applies to the tortious duty also by reason of the representations made to which reference is made above. … Even if I am wrong on that, the findings of Mr UrsoBaiarda [the Plastic Surgeon on whose report the Claimant relied] are couched in such stringent terms that they cover any surgical and indeed clinical practice whether governed by local Polish customs or not. The conclusions of Mr UrsoBaiarda put paid to any subtlety of distinction between local custom and English practice that might if Mr Mackenzie [Counsel for D3] were correct, in other circumstances be considered relevant. 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. … I say nothing decisive upon the applicability of the tour operator cases to the concepts arising in medical negligence. I incline strongly to the view that they are inapplicable in such a context given the notion of a package holiday, and the policy reasons behind the case law that has been discussed. It was discussed at trial at greater length than is reflected in this judgment but it is unnecessary to go further here. It is clear that the evidence of Mr Urso-Baiarda supports the claimant's case that the care of the doctor and the clinic in tort fall strikingly below any acceptable standard. As Mr Chapman [Counsel for the Claimant] argued, in any event, in Lougheed, reference was made to egregious, blatant and life-threatening negligence (see paragraph 9). There are certain irreducible standards in life-threatening situations where local custom, practice and standards are irrelevant, and this was in my judgement, such a situation. … 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.”
The Third Defendant's argument – that, in this context, the injured consumer requires both a local law and a local safety standards expert among his/her gallery of experts – was both novel and enterprising. It remains to be seen whether – despite the very significant judicial scepticism expressed in Clarke v Kalecinski – it will be deployed again (outside the very specific instance of the package holiday contract).
Originally published by PI Focus, July 2022
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