Grace Kelly, Express Solicitors
By Grace Kelly, litigation assistant, clinical negligence at Express Solicitors
Many practitioners will be acquainted with the principles of expert evidence in English and Welsh-based clinical negligence claims and how this matter can be complex in practice. Yet practitioners who are unfamiliar with cross-border clinical negligence cases may be unaware of the complexities associated with expert evidence in such claims.
Medical tourism, that is trips abroad for medical, dental or surgical treatment, is creating a rise in cross-border clinical negligence claims, which indeed are more complex than they first appear.
Countries such as Turkey, Lithuania and Czech Republic are common destinations chosen by Brits so they can undergo surgical treatment, mainly due to their competitive and attractive pricing. However, cheap treatment could mean there’s ultimately a bigger price to pay.
According to the Foreign Office, at least 28 people from the UK died following medical procedures in Turkey alone since 2019. Moreover, research collected by British Association of Aesthetic Plastic Surgeons revealed that, from 2018 to 2022, 324 patients required corrective surgery once they returned home. The number of people needing hospital treatment in the UK after getting cosmetic surgery abroad increased by 94% in 2023.
This all means that medical negligence practitioners will soon see a surge in these kind of cases and will need to be equipped with a sufficient understanding of how these claims operate in practice.
So, what are the key legal and practical issues in cross-border clinical negligence cases?
Language barriers
Open, honest and effective communication is essential. For a patient to obtain the correct treatment, have realistic expectations and get the best results, they need to be able to communicate with their treatment providers.
An individual dealing with language barriers significantly reduces the effectiveness of the desired surgery and there is an increased risk that the performing surgeon may not provide the desired outcome or may provide a completely different procedure than that anticipated.
Lack of informed consent
The issue of obtaining informed consent is present even with UK surgeons. Ensuring a patient understands the benefits and risks of medical procedures can be difficult and easily overlooked.
However, in cross-border clinical negligence cases, this issue is amplified. It is not uncommon for a patient to be presented with a single consent form explaining the procedure and associated risks immediately preceding surgery. Time for discussions can be limited and the patient may not actually understand the form they have been handed.
The aforementioned language barrier can exacerbate this issue and, after flying to another country, individuals can feel pressured to simply sign the form to undergo their desired surgery without fully understanding the inherent risks involved.
Device and implant safety
In the UK, who can provide medical treatment is heavily regulated. Due to breast implant scandals in the past, medical implants and devices are similarly regulated to ensure safety.
However, not all foreign countries have such stringent regulations. In some countries, medical standards and regulations can be less rigorous, resulting in an increased risk of substandard devices and implants being used.
Inadequate aftercare
Patients usually choose to engage in medical tourism as it is cheaper than obtaining private treatment in the UK but it’s still costly in terms of flights and hotels.
Following treatment, even when reporting problematic symptoms, patients are commonly expected to return back to the UK just a few days after surgery. The cost of hotels and flights can severely limit post-operative care so in cross-border clinical negligence cases, there is an increased risk of complications such as sepsis.
Dangers of air travel
Combining major surgery and air travel can be highly dangerous. This is because there is an increased risk of developing deep vein thrombosis and pulmonary embolism due to prolonged sitting following surgery which can cause further complications.
A focus on case law: expert witness evidence in medical tourism cases
In some cases, the UK courts can be the appropriate forum to hear claims relating to clinical negligence that has occurred outside the jurisdiction for these medical tourism cases.
As in UK claims, the use of expert evidence is vital to prove the claimant’s case. Yet, given the different medical systems, one may question whether it would be suitable to instruct a UK medical expert rather than an expert who practises in the jurisdiction where the alleged negligence occurred.
The case of Clarke v Kalecinski & Others [2022] EWHC 488 (QB) provides some guidance for practitioners who are confronted with this matter.
Facts
In 2014, the claimant found a website advertising cosmetic procedures in Poland with Mr Kalecinski, a surgeon. The website advertised Mr Kalecinski as UK-trained and UK-registered and so the claimant entered into a contract for a breast augmentation and uplift, and thigh liposuction. The claimant had a pre-operative consultation in the UK before travelling to Poland for surgery.
The surgery was unsuccessful. Shortly after the procedure, she developed symptoms indicative of sepsis. There was a lack of appropriate aftercare and the claimant decided to return to the UK, where she was diagnosed with severe sepsis. Medical evidence established the infection could have been life-threatening if it had remained untreated. Moreover, the claimant had to undergo further reconstructive breast surgery, resulting in irreparable scarring.
Issue
The defendant challenged whether the claimant could rely on expert evidence on an English standard of care to establish an alleged breach of duty in a different jurisdiction.
The defendant sought to rely on so-called ‘package-holiday’ cases namely, Wilson v Best, Evans v Kosmar, and Lougheed v On The Beach to advance their argument that, if no evidence of a Polish standard was adduced, the claim must fail.
Ruling
Foster J rejected the defendant’s submission. As it was a term of the contract that the defendant would operate to the same standard of a UK-registered surgeon, the defendant had bound themselves to a UK standard.
Moreover, Foster J noted that, where there was an egregious, blatant and life-threatening situation, as was evident in the claimant’s case, evidence as to local standards was irrelevant. Foster J therefore observed that the package holiday cases that the defendant sought to rely upon where irrelevant due to the above policy reasoning.
Comments
Clarke v Kalecinski is highly fact-specific and so will not be applicable to every case. That said, the case does demonstrate a narrow scope for asserting a UK standard of care is to apply in cross-border clinical negligence cases.
In situations where it is a term of the contract that a practitioner will operate to the same standard of a UK practitioner or the facts present a blatant and life-threatening situation, it appears that evidence of the UK standard of care can apply.
Hence, where this is not the case, it may be that expert evidence from a practitioner in the relevant country will be required.
Moreover, while Foster J rejected the use of package holiday cases in Clarke, it could be argued that there is scope to rely on them in future cross-border clinical negligence claims. It could be argued that it would be unreasonable for the courts to impose a UK standard of care on foreign practitioners in certain instances, especially were the foreign practitioner has little or no knowledge of such standards.
Currently, there is a lack of judicial opinion on medical tourism claims. It can be complicated and unclear which experts are required and to what standards medical practitioners should be held to.
However, as medical tourism is on the rise, it may only be a matter of time before these cases become more widespread and the courts offer more guidance on this area.
