On a knife edge

Britain’s love affair with the surgeon’s knife is in full swing and shows little sign of waning. More and more people are willing to invest in elective surgery – a planned, non-emergency procedure – in the private healthcare sector, including both operations required for health reasons and purely cosmetic procedures.

Market research analyst Mintel estimates that there were 690,000 cosmetic surgery procedures carried out last year, a 40% increase since 2008, while the market is now worth £1.2bn compared with £143m back in 2002.

Alongside this, the demand for bariatric surgery – a controversial new surgery developed to treat obesity, where the stomach is banded or bypassed to produce weight loss – has soared. According to The Royal College of Surgeons, there are approximately one million obese people with a body mass index of 40 and above in Britain – the criteria for bariatric surgery on the NHS.

Last year, however, only 4,300 operations were carried out on the NHS, meeting only a small percentage of the demand and prompting many to turn to the private sector. BMI Healthcare has reported a 20% year-on-year rise in the demand for this type of surgery. Furthermore, tough cuts in public spending may lead the NHS to introduce more stringent criteria for bariatric surgery, driving even more people towards other options.

But as the desire for nips and tucks grows, there has been a commensurate rise in the number of claims. According to charity Action against Medical Accidents (AvMA), the number of negligence claims made in the wake of botched cosmetic procedures continues to rise steadily. The Medical Defence Union (MDU), which insures doctors, has paid almost £10m in compensation since cosmetic surgery became more widely available in the mid-1980s.

Meanwhile, a recent MDU study showed the number of medical negligence claims against doctors following bariatric surgery has doubled in the past two years, with 21 of the 35 claims made since 2003 submitted between 2008 and 2009. The estimated value of active cases ranges from £2,500 to £500,000. But, while the numbers may seem relatively small, they are likely to spiral as bariatric surgery becomes more widely available.

MDU’S clinical risk manager Dr Karen Roberts says: “I think we will see more claims because there can be a time lapse in medical negligence claims between the start of [a new type of procedure] and the claims that appear.”

Elsewhere, AvMA policy and research manager Liz Thomas points out that it will only be a matter of time before Britain catches up with the USA, where malpractice suits for botched bariatric surgery are one of the fastest-growing areas in medical negligence.

Major drivers

Martin Faircloth, divisional director and head of the medical/pharmaceutical team at FSJ Broking, a leading market provider of medical malpractice insurance, believes the market is primed for an increase in claims. “Ten or 15 years ago, you had liposuction and nothing else, and it would be expensive. What is happening now is that prices have dropped, so surgeries have become more affordable. In the private sector, the more elective cosmetic surgery there is, the more claims you are going to have – it’s a numbers game,” he explains.

Another major driver behind the increased potential for dissatisfied patients is the lack of an overarching regulatory authority in the cosmetic surgery sector. NHS surgeons are covered by the health service, and any claims of negligence are submitted to the NHS litigation authority, while in the private sector general practitioners are required to register with the General Medical Council (GMC). There is no corresponding register for cosmetic surgeons, however.

“In the UK, to operate on a dog you have to be a vet but to operate on a human you don’t have to be anything,” says Dr Nigel Mercer, president of the British Association for Aesthetic Plastic Surgeons (BAAPS), which is campaigning for greater regulation. “Anybody can call themselves a cosmetic surgeon, which is a major, major problem in the UK.”

Stephensons Solicitors’ partner and head of clinical negligence, Louise Griffiths, argues that this lack of scrutiny can have serious repercussions. “It is unregulated and often the surgeons are not necessarily trained to do the procedures, and you do get some surgeons having a go. That can lead to problems,” she says.

In some cases of medical malpractice, this has led to serious injuries and even fatalities. Last year, Denise Hendry, wife of former Scotland captain Colin Hendry, died following surgery to correct an infection she contracted after liposuction seven years previously.

With bariatric surgery, the risks are many. The MDU study identified the most common post-operative complications, such as: infections; bands slipping or leaking; delays in diagnosing problems; and complications in adjusting bands. In a number of cases, the injuries were classified as severe and one led to death after the surgeon accidentally perforated the gut. “This is a new area of treatment where demand outstrips the number of surgeons that specialise in that area, so that is when you get non-specialists stepping into the breach. That is really risky,” Thomas says.

Great expectations

The major driver of litigation, however, is unrealistic hopes about the end results of the surgery. Nigel Poole, a barrister specialising in clinical negligence at Kings Chambers, argues that patients often fail to be sufficiently informed about the risks involved and what to expect.

“People see advertising material and promotional websites, and they have certain expectations. It is part of the surgeon’s role to manage those expectations. When people come out with visible scarring or complications, that gap between what they are left with and what their expectations were is what causes them stress and leads them to go to solicitors,” he says.

Moreover, Poole points out that patients’ first point of contact when they enquire about surgery is often a ‘patient co-ordinator’, a non-medically qualified member of staff. He explains how they may advocate certain procedures to people making enquires, accepting deposits before the patient has had a medical consultation.

“So even before the patient has seen the surgeon, there is quite an inducement for them to carry on and do the surgery,” he says. Poole adds that, in one case, an uncertain patient was directed to non-medically trained staff who showed them surgically enhanced parts of their own bodies to convince her to continue, rather than directing her to the surgeon.

Policy perils

In the private sector, individual surgeons are liable in cases of clinical negligence. Usually, they are indemnified by medical defence organisations the MDU, the Medical Protection Society and the Medical and Dental Defence Union of Scotland, but may opt to take out a policy with other insurers.

According to BAAPS, the premiums can be as high as £40,000 a year, owing to the high volume of litigation generated by cosmetic surgery. Mercer argues that, because of the lack of regulation in the sector, less qualified practitioners have pushed up premiums for all, as a result of the claims they generate. Consequently, BAAPS has recently introduced an insurance policy underwritten by Premium Medical Protection, tailored for its own members and based on their own claims histories. It argues that this will help counter the escalating cost of premium elsewhere in the market.

But Griffiths points out that, given the lack of regulation in the sector together with the traditionally high cost of premiums, there is no guarantee for the patient that the surgeon is insured at all. “Surgeons in the private sector may not have insurance, or be adequately trained, because there is nobody there to regulate them – and patients just presume they can do this procedure.”

In addition, if the surgeon fails to keep up insurance payments or has left the country, the liability can in certain cases extend to the private clinic or hospital. “There is widespread use of surgeons who live abroad but who come on a short-term basis to this country. Often it is difficult to issue proceedings when they live overseas and sometimes claimants are driven to include the clinic in their claims as well,” Poole says.

Growing awareness

AvMA’s Thomas adds that claims will spiral as more information becomes available about the possible side effects and repercussions of newer procedures. “Initially, patients don’t have the knowledge or awareness of whether they are experiencing the normal effects of the procedure or whether something has gone wrong. But as there is more information out there, and more people have the procedures, they will have something to compare themselves against. Awareness will be raised at that point and more people are likely to complain.”

Thomas also warns that relatively new procedures such as bariatric surgery could carry as yet unknown risks in the future. “We don’t know what the long-term health consequences are going to be, because you are changing how the body deals with food, particularly when you are dealing with younger people. What are the risks going to be in 30 or 40 years’ time?” she asks.

It seems that, while people are increasingly prepared to take risks in going under the knife, either to combat chronic health problems such as obesity or in their quest for physical perfection, cosmetic and weight-loss surgery claims will continue to be at the cutting edge of medical negligence litigation. IT