By Dominique Parker, Associate in Personal Injury, and Jennifer Waight, Legal Executive in Clinical Negligence and Personal Injury.
PIP breast implants – what next for those who are injured?
A member of the public who has a defective breast implant may be able to pursue a personal injury claim if the product causes them injury or if they require surgery to remove a product that is potentially faulty.
There are many issues that need to be considered when pursuing a product liability claim. It is important to trace the manufacturer, to establish which country’s consumer legislation will apply and it will be necessary to ascertain whether the manufacturer has insurance, or assets, to meet any claim.
With the 2010 recall of the implants manufactured by Poly Implant Prothèse (PIP), a French company, there are potentially thousands in the UK who could be entitled to bring claims for compensation. The concern is that there is a higher rate of rupture in PIP breast implants than with other types. However, this has not yet been formally accepted by the UK authorities. As PIP has now gone into liquidation, at present it is unclear which route these claims will take.
We advise anyone with PIP breast implants to seek medical advice as soon as possible.
Cosmetic surgery – a rising trend?
Figures produced by the British Association of Aesthetic Plastic Surgeons (BAAPS) suggest that the number of breast augmentations increased by 10% in the year prior to the 2010 PIP recall. With NHS funding for cosmetic procedures practically impossible to obtain, those wishing to undergo surgery do so privately and there is no shortage of clinics to choose from. In addition, BAAPS has reported recent instances of ‘free coupons’ and an offer of free cosmetic surgery which appeared in a magazine aimed at young women.
It is important that anyone considering cosmetic breast surgery is properly counselled about the relative risks and benefits of the procedure and that they are given realistic expectations about the likely result of the surgery.
Those wishing to complain about NHS treatment can do so through a structured complaints procedure which is supported by legislation and, if dissatisfied, they can complain to the Parliamentary and Health Service Ombudsman. Unfortunately, this is not the case for private treatment and there is no legislated complaints process. Many patients find they are simply asked to fund further surgery which they cannot afford.
Both unsatisfied NHS and private patients can make a complaint to the General Medical Council. However, this can be a lengthy process with no guarantee that the GMC will take up and investigate the complaint.
Patients might therefore consider litigation which, if successful, will result in compensation. Thomson Snell & Passmore has one of the largest clinical negligence departments in the South East and we act for claimants who have suffered negligent cosmetic surgery including, but not limited to, breast augmentation or reduction and weight loss surgery.
In one case we acted for a claimant who was concerned about the appearance of her breasts following surgery and reported that she could feel the implants moving around. The treating surgeon offered revision surgery to insert larger implants. The surgery went ahead but afterwards the claimant was extremely concerned about the appearance of her breasts and felt that the second operation had brought no improvement. The surgeon offered further surgery to insert even larger implants. The claimant was reluctant to undergo further operations under the care of the surgeon.
She consulted Thomson Snell & Passmore and hoped to obtain compensation which would enable her to undergo private treatment with a different surgeon. We obtained expert evidence from an independent plastic surgeon who specialised in breast enhancement surgery. He advised that the claimant had thin skin and ptotic (droopy) breasts. Accordingly, whilst it was reasonable for the surgeon to offer the first breast augmentation, it was inappropriate to simply increase the cup size. A larger implant would not fill the excess skin and the only way to achieve this would be to tighten the skin envelope, which the surgeon had not done.
It is important to remember that a substantial number of women receive breast implants not for cosmetic reasons but in order to give them a reconstructed breast following surgery for conditions such as breast cancer. These procedures are carried out in the NHS as well as privately. These patients have already suffered the trauma of the diagnosis and extensive surgery and it will be a devastating blow for them to face the prospect of further surgery.
For further information on any of the issues raised above, please contact Dominique Parker, Associate, on 01892 701366 or Jennifer Waight, Legal Executive, on 01892 701374.