Cosmetic Litigation: The Tip of an Iceberg

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Mr S suffered orthopaedic injuries and permanent damage to his pituitary gland in a motorcycling accident. Mr S recovered £360,000 on a provisional damages basis.
Mr W suffered a serious knee injury in a motorcycling accident and he went on to develop chronic pain syndrome forcing his early retirement. Mr W recovered £575,000.
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Mr F suffered traumatic amputation of his foot and serious arm injuries in a motorcycling accident. Mr F recovered £863,524.
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Mr T suffered an ankle and knee injury in a motorcycling accident and was unable to return to his former work as a Baker’s assistant. Mr T recovered £395,000.

Cosmetic Litigation: The Tip of an Iceberg

Michael Krebs, a barrister at Liverpool Civil Law Chambers, has kindly written an article for Beardsells on the problems created by the shortcomings of some cosmetic surgeons and how, if you have suffered botched botox, a severe chemical peel, or any other damage at the hands of a would be cosmetic surgeon, or beautician, a compensation claim for damages for personal injury should be pursued.

Our specialist personal injury team will provide free advice, so do not hesitate to contact us – we are finding that, with the increasing numbers of offers being put forward on the internet for “cheap” courses of treatment, the numbers of unsatisfied customers is rising. Training and certification of beauticians is not always all that it seems – they may be certificated, but, are they adequately trained to use the chemicals they work with, or to operate dangerous ‘laser’ machinery, which can leave their client with significant burns? 

Having succeeded in the past with these types of claim, we can guide you through the claim process.

Gone are the days when people merely dreamed of resembling Angelina Jolie or Brad Pitt. Now they are able to do so or so the theory goes. People have always been interested in cosmetics and ways to improve their appearance, in particular the aesthetic beauty of the face. Latterly, an entire industry has arisen around such non-surgical novelties as Botox and derma fillers, bleaching of the teeth, chemical peels and hair transplants to name but a few.

Many of the participants are the middle-aged hoping to recapture lost youth but many are young people wanting to preserve their looks or even change their looks to resemble their favourite celebrity. Historically, this has been the reserve of the rich and famous most notably Michael Jackson but now the man in the street can have his face injected with botulinum toxin during his lunch break, for fairly modest sums of money.

One can book onto loyalty schemes to make this a regular arrangement. There is no compulsory cooling off period to give the patient/client time to consider. The industry is almost totally unregulated such that anyone from a plastic surgeon to a postman can offer non-surgical procedures as long as they have taken a short course.

The likes of Groupon offer discounted Botox as though it were a pair of new shoes. It is not surprising therefore that so many of these procedures end in disaster. Not only is the cosmetic effect disappointing and/or asymmetrical but Botox and derma fillers in particular have been known to cause blindness, necrosis of the skin, sagging eyelids and allergic reactions to name but a few.

Sir Bruce Keogh was charged with the task of examining this industry and his report is well worth a read. The gist of his findings is that the industry is desperately under regulated. The training has to be far more serious. All practitioners offering these services should be registered and insured. The materials should be treated as medical materials requiring a prescription. There should be a cooling off period, as is the case for surgical procedures.

The Government have considered his paper and are impressed by it. The rhetoric is one of adoption of his recommendations but as of yet there is little or no action on the ground. No doubt in the run-up to a general election the Government is concerned with more pressing matters and so one has to assume that the status quo will remain for the forthcoming years.

Indeed the Queen’s speech in June 2014 made no mention of the draft cosmetic bill and the industry remains without any form of statutory regulation. It is well known that Sir Bruce himself is frustrated by the lack of activity on the legislative front. It is anticipated that regulation is two to three years away. However, regulation itself will not do away with malpractice as is well known to the legal profession in such areas as industrial disease.

Damages are likely to be significant. There is a particular psychiatric diagnosis known as Body Dysmorphic Disorder which does not appear in the JSB guidelines and appears only sparsely within the reported cases. The condition speaks for itself. It is not mere vanity. This is a form of intense anxiety and/or obsession which is so debilitating to the sufferer that he/she is incapable of leading a normal life.

Indeed, the prevalence of morbid ideation in BDD sufferers is known to be higher than for any other psychiatric condition. It is important to this discussion because many people who would go for Botox and the like already suffer from it or are borderline.

When the procedure goes wrong, they are likely to be catapulted into the full blown disorder. It is very difficult to treat. One of the main authorities on the subject is David Veale of the Maudsley hospital in South London. He is a proponent of inpatient treatment where appropriate and so one can see the potential for significant special damages on the horizon.

It is not all doom and gloom. A new independent register, Save Face, has been set up to provide accreditation and regulation through robust auditing and monitoring measures. This will assist consumers to make an informed decision about non-surgical practitioners. The clinical director of Save Face is a former Chair of the British Association of Cosmetic Nurses.

To those thinking of having cosmetic surgery or non-surgery, one must always look beyond a cursory Google search. That is not to say that Google cannot be a useful tool but it must be treated as a starting point rather than the final word.

The practitioner should be registered with their governing body, whether the General Medical Council, Royal College of Nursing or General Dental Council etc. Membership of a professional body is also a good sign. For example, a plastic surgeon should be a member of BAAPS, a dermatologist should be a member of BAD and so on. The consumer should always look for proof of insurance.

Whilst not compulsory, it is always a good sign if the practitioner is registered with the Government’s Care Quality Commission. This is a voluntary step on the part of the clinic and is commendable.

Young People

The digital age is a wonderful era in which to live. It has opened up opportunities to the world that former generations could not have imagined. However, as with all powerful tools there is a dangerous price to pay. I took my usual holiday this year in a sunny resort and in keeping with tradition spent most of my time around the pool or on the beach.

This year, I noticed groups of young girls and boys engaging in a new trend. I lost count of how many young people took pictures of themselves with their smart phones. The word “Selfie” has winged it’s way into the Oxford English dictionary. However, they did not take just one, but dozens upon dozens of photographs presumably in an effort to land upon the perfect Selfie.

There are also applications available on the internet which enable the consumer to airbrush portraits to iron out any imperfections. It is, of course, the final polished article which makes its way onto the Facebook post. The name of the game is to collect as many “likes” as possible.

The problem is that young people are now bombarded with perfected images not of remote celebrities but friends and colleagues. Inevitably, they will compare themselves to others more and more but the comparison is not based on real life but on processed images.

This is no consolation to the young teenage boy or girl obsessed with their own insecurities. These comments are not merely anecdotal. A recent study in the UK and USA (see The Times 15th July 2014) reported a clear link between time spent on Facebook and poor body image.

65% of people in the UK have smart phones and 31 million use Facebook. These figures will only increase. The link between social media and the increase in affordable non-surgical procedures is undeniable.

Some of this is harmless, some of it is menacing and some is nothing short of tragic. Another word which makes its début in the dictionary is “trolling”. This is the phenomenon of internet bullying. It results in humiliation of children before not a handful of their peers but entire social network communities.

Teenagers are notoriously sensitive and insecure about their looks. This is the time where hormones and genetics are particularly kind to some and cruel to others. It is no surprise that we read of young children who indeed take their own lives as a result of this new culture.

Sadly, there will be cosmetic practitioners who take full advantage of such personalities for their own gain. I do not suggest for one moment that we lawyers perform our duties only for the greater good but this is one area, amongst others, in which we can bring the perpetrators to a degree of justice in the form of compensation.

This is also a time in which the marketing teams within the legal profession need to earn their crust. Everybody knows that where there is blame there is a claim. This principle is generally attributed to traditional accidents on the highway or in the workplace. Dissatisfaction with a cosmetic procedure may not be classically recognised as an injury by the general public. As a profession, we need to bring this knowledge to the attention of potential Claimants.

The Law

As to the Law, there is refreshingly little to say at the moment. There are plenty of cases making their way through the civil justice system but precious little in terms of reported authorities. One of the key issues seems to be the extent to which the consumer is entitled to be informed of all potential risks.

Traditionally, there are two polarised approaches to informed consent. One is the Sidaway paternalistic approach to medicine in which the doctor can be trusted to determine what risks the patient needs to know, so as not to dissuade him/her from engaging in necessary medicine.

The alternative approach is the Chester v Afshar method, namely that the patient is entitled to all the available information so as to make the most informed decision. The latter approach must be the correct one for cosmetics in that no cosmetic procedure, save exceptional circumstances, is essential. In Chester, not a cosmetic case, an unlikely eventuality occurred which had not been explained to the patient.

The twist in the story was that the Claimant’s evidence was that she would have undergone the procedure in any event. On the face of it, the classic “but for” test of causation was not met. The House of Lords, with the great Lord Hoffman dissenting, took the view that this was an exception to the normal rule and found for the claimant.

It is also important to note that these cases will be prosecuted in negligence and private contract as very few cosmetic procedures are offered by the NHS. Therefore, the Supply of Goods and Services Act will apply to those who are merely dissatisfied with the results and feel that they did not get what they bargained for.

This will of course be the meat of the evidential dispute between the parties. One has to assume that experienced medical practitioners will be more familiar with the concept of informed consent than beauticians, hairdressers and other novices in the marketplace. One can see the scope for plenty of argument in the future.


Written by Wai

Wai Yi is our joint Managing Director. She joined the firm originally as an articled clerk to the founder, Keith Beardsell and qualified as a solicitor in 1989. She became an equity partner in 1997, and upon the creation of Beardsells LLP in 2011, she became joint Managing Director. You can follow Wai Yi on Google+.

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