High Court allows medical negligence claim against surgeon but dismisses claims against hospital and agency company.

Neutral Citation Number: [2009] IEHC 164

THE HIGH COURT

2003 6265 P

BETWEEN:

ALVIN REILLY

PLAINTIFF

AND

GRAEME MOIR, PRECISION LASERCARE LIMITED,

AND CLANE GENERAL HOSPITAL

DEFENDANTS

AND BY ORDER

NIGEL CARVER AND PRIVATE PATIENT SERVICES LIMITED

THIRD PARTIES

JUDGMENT of Mr Justice Michael Peart delivered on the 3rd day of April 2009:

The plaintiff is a medical doctor who in 2002 decided to undergo breast enlargement surgery. The negligent manner in

which that surgery was conducted has given rise to her claim for damages in these proceedings.

The first named defendant is the surgeon who performed the operation.

The second named defendant is a limited company incorporated in this jurisdiction and whom the plaintiff first consulted in

relation to her intended surgery, and who made the arrangements for that surgery to be performed, and which received

the agreed fee from the plaintiff for that surgery.

The third named defendant is the hospital at which the surgery was performed.

The first named Third Party is a surgeon in London. At this time he was a senior colleague of the first named defendant at

Bart’s Hospital, and who the plaintiff believed was going to perform her surgery. He was in fact in attendance at Clane

Hospital on the date of the plaintiff’s surgery, and available for consultation by the first named defendant at the third

named defendant hospital at the time her surgery was performed, if that had been required.

The second named Third Party is a limited company incorporated in the United Kingdom and which provides certain

secretarial, management and accountancy services for some surgeons in London, including the first named Third Party and

the first named defendant.

The plaintiff’s surgery:

The plaintiff made a decision in 2000 to undergo breast enlargement surgery. It is unnecessary to set out the reasons

given by her for this decision or why she had not made this decision earlier in her life. She was aged fifty four when the

operation was performed in July 2000. She is unhappy with the outcome of her surgery which she considers to have been

performed negligently, firstly by the implants being placed somewhat higher than they ought to have been, with the result

that the scars, which would under normal circumstances be concealed beneath the infra-mammary folds post-operatively,

are visible, thereby revealing to anybody who might see them that she has undergone this surgery; and secondly by the

left scar being unacceptably, unnecessarily and incorrectly longer than usual, and therefore visible, even if the implants

had not been placed somewhat higher than they ought. This was something which she did not want to happen and which

she claims ought not to have happened if the surgery had been properly performed by the first named defendant. The

scar under her right breast is 6.5 cms in length and is 4cms below the infra-mammary fold, and that on the left is 8cms in

length and is 4cms below the infra-mammary fold. The scar on the left side is unacceptably long, and both scars are

visible even when wearing a bra or bikini-top. No improvement can be achieved by further surgery or treatment.

Some days after her surgery she experienced pain on her left side and had a high temperature. She rang the third named

defendant hospital about this, and later received a telephone call from the first named third party. She had not met him

by this date, but he advised her that her pain/infection had nothing to do with the surgery performed and that she should

take some pain-killers. After six weeks she attended at Clane Hospital as I have already referred to, and on that occasion

she spoke to Mr Moir, the first named defendant, and on this occasion she herself saw her scars for the first time. She

stated that the first named defendant had himself been shocked by the appearance of the scars and did not understand

how it had occurred.

She was told to leave things be for six months in the hope that at that stage something could be done about her scars.

She waited for that period, and received an appointment to attend the hospital again, but that appointment was

cancelled. A further appointment was arranged which she attended and on that occasion she met Mr Carver, the first

named third party for the first time. He expressed the view that there was nothing which could be done about the scars.

That was her only involvement with Mr Carver.

The first named defendant, Mr Moir, who performed this surgery, was not professionally represented at the hearing before

me, but he was in attendance and gave evidence during which he very candidly admitted that the surgery had been

performed negligently by him. He chose not to cross-examine any evidence adduced. The Court has heard evidence from

Michael J. Earley, Consultant Plastic Surgeon. His opinion is that the visibility of the left scar is unacceptable and resulted

from the fact that this scar is unacceptably long and too low, but that it is all the more visible on account of the high

placement of the left implant. He has stated that if the right implant was properly placed the right scar itself would be

acceptable as to its length. In these circumstances it is clear that the surgery was negligently performed by the first

named defendant. His candid admission and apology to the plaintiff in court during his evidence was appropriate and no

doubt welcomed by her.

No negligence has been adduced which could implicate the third named defendant hospital in relation to the plaintiff’s

surgery. It had simply given the first named defendant and the first named Third Party theatre admission rights and had

permitted its hospital to be used for this surgery.

The issue principally arising in this proceedings, apart from the assessment of general and other damages to which the

plaintiff is entitled, is whether the second named defendant has been negligent, and if so, whether it is entitled to an

indemnity in respect thereof from either or both of the Third Parties. I will address these questions after reaching a

conclusion as to the amount of damages to which the plaintiff is entitled for the unsatisfactory result which her surgery

achieved, and which has disappointed and upset the plaintiff greatly. It has to be borne in mind that even if the surgery

had been properly performed the plaintiff would of necessity have two surgical scars, but they would under normal

circumstances not have been visible to the extent that they now are.

The plaintiff’s damages:

It was not until about six weeks after this surgery that the plaintiff first saw the surgical scars. Prior to this she had been

bandaged. The plaintiff was appalled at what she saw. It had been very important to her that nobody, even her

immediate family, should become aware that she had undergone this surgery, and she believed, as was confirmed by her

surgeon prior to surgery, that her scars would remain concealed beneath the infra-mammary folds. Her decision to have

this surgery was made some time after her husband had died. She had never in her life felt able to wear a bikini, and she

had undergone this surgery not only to achieve a breast enlargement per se but also so that she could, if she so wished,

wear a bikini. These matters were of importance to her, and, particularly, that the surgical scars would not be

unnecessarily visible.

She is entitled in my view to be compensated for the fact that she now has visible scars, particularly on the left side, and

also for the fact that the purpose of the surgery has to a large extent been frustrated by the visibility of these scars.

They are permanently visible and this cannot be addressed by further treatment. She has received a permanent

disfigurement of a particularly distressing and embarrassing kind.

In my view general damages in the sum of €75000 are appropriate in the particular circumstances of the plaintiff and her

intention when she decided to undergo this surgery. She is also in my view entitled to recover the fee for this surgery

since she is now in a worse position than if she had not had the surgery at all. The fee paid by her was £4050, which has

been stated to be €5142.43, giving a total of €80142.43.

The relationship between the plaintiff and the second named defendant (PLL):

PLL is a company which advertised its services which included the provision of cosmetic surgery such as breast

enlargement. PLL does not itself perform surgery or provide medical care and treatment directly. The plaintiff decided to

make contact with PLL in July 2000 in order to make arrangements for this surgery to be performed. Following an initial

telephone call to PLL she attended an appointment at Clane Hospital where she had a consultation with the first named

defendant. She was content with this consultation and what she was told, and she decided to go ahead with the surgery.

She was happy that the first named defendant was suitably qualified, as indeed he was, and she was given a date for her

surgery by PLL. In fact she had been expecting that her surgery was to be performed by the first named third party, but

nothing turns on the fact that it was in fact the first named defendant who performed her surgery. She had no concerns

about the identity of the surgeon or their qualifications. She is a medical doctor herself and assumed, as she was entitled

to, that whoever performed her surgery at the hospital would be appropriately qualified.

Prior to her surgery she paid the requested fee to PLL by cheque. She had no involvement in how that fee was divided

between the surgeon, the hospital and PLL.

The relationship between PLL and the first defendant, and the first and second named third parties:

PLL submits that in the circumstances where the first named defendant, Mr Moir, was provided to it by or through the

second named third party (PPS) for the purpose of the plaintiff’s surgery, that entity should indemnify it in respect of any

damages arising from the negligence of the first named defendant. I have heard evidence of what the involvement of PPS

has been in relation to the first named defendant, and as to the relationship between PLL and PPS.

Put plainly, the business carried on by PLL was to advertise in Ireland for patients wishing to undergo cosmetic surgery of

various kinds, and having secured clients so interested, to arrange for them to speak to a suitably qualified surgeon in the

hope that this consultation would result in a decision by the patient to undergo the surgery. PPS is company operating in

London which provides certain private practice management and administration services to about fourteen surgeons in

London. PLL does not itself provide any medical services.

PLL had discussions with PPS in 1998 when setting up its business, and arrangements were put in place whereby if a

client contacted PLL expressing an interest in having some cosmetic surgery, PPS would be contacted and it would make

arrangements for a qualified surgeon such as Mr Carver or Mr Moir to come over to Dublin to discuss the surgery with the

client. In the event that the client made the decision to go ahead with the surgery, PLL would make arrangements with

Clane Hospital for surgery to be performed on a particular date. PPS would arrange for the surgeon to travel over from

London in order to perform that surgery. This would typically occur at a weekend. The client would pay a composite fee

to PLL which would in turn pay the hospital and PPS, keeping a portion of the fee itself. PPS would then pay the surgeon

who performed the surgery.

According to Mr Monahan of PLL it is Mr Carver who is the central figure in, and had a 50% shareholding in PPS, with Mr

Tony Briggs having the other 50%. He stated also that Mr Carver had what he described as a “very high conversion rate”.

That is a way of saying that he was very good at turning a consultation with a client into a booking for surgery.

The first named defendant presumed that professional indemnity insurance was in place for this surgery at Clane Hospital,

either through PLL or through PPS. It would appear that this in fact was not the case. It would appear that PLL had some

form of insurance in place, but that since this claim was not notified in a timely manner to that insurance company by PLL

the claim being made by the plaintiff is not being covered.

It appears that Mr Moir’s own professional indemnity insurance covers any surgery carried out by him in the United

Kingdom and not outside it. That has obviously left the first named defendant exposed to the plaintiff’s award of damages

personally. When he had originally received a notification of the plaintiff’s claim he had presumed that it would be looked

after by Mr Carver or Mr Briggs through PPS and that solicitors would be instructed by the insurers. However, as I have

said, no insurance was in place for surgery outside the United Kingdom.

The first named defendant, Mr Moir, was not party to any of the arrangements entered into between PLL and PPS. He

was simply asked by PPS to travel to Clane Hospital on this particular day in order to perform the plaintiff’s surgery. He

was never quite sure whether it was Mr Monahan of PLL or Mr Carver/Mr Briggs of PPS who were in charge of these

arrangements. He knew that there was some arrangement between PLL and PPS, and it was an opportunity for him to

earn additional income at the weekends.

The first named defendant, Mr Moir, stated that both he and the first named third party Mr Carver are independent

surgeons for whom PPS simply perform some administrative functions, such as controlling their diaries, organising tax

returns, collecting fees and suchlike. Neither of them is employed as such by PPS. He stated that in so far as Mr Carver

would on occasion be at Clane Hospital in an adjoining operating theatre he was available to him for advice or consultation

should that need arise, but he rejected any notion that he was working under the direction as such of Mr Carver.

Mr Monahan of PPS has stated that his understanding was that Mr Carver would be supervising Mr Moir during the surgery

being performed at Clane Hospital. It was apparently his understanding that if Mr Carver was unable to do the surgery

himself he would supervise whatever surgeon actually did the surgery. He stated also that his principal concern was

simply that whatever surgeon was sent over by PPS would be a suitably qualified surgeon and one who would perform the

surgery in a non-negligent manner. He described the role of PLL as simply locating the clients, and providing the facilities

and some administration in relation to the surgery. PLL had no involvement in the medical aspects of the relationship with

the client, that being the responsibility solely of PPS and the surgeon involved. He went on to say that he at all times had

confidence in Mr Carver and had a high opinion of his skill and abilities.

Mr Tony Briggs gave evidence and described the services which PPS provides for the fourteen surgeons for whom it

provides those services. Those services include administration and management support. These involve managing diaries

for operations, issuing invoices and collecting fees. Some accountancy services are also provided. He described how the

relationship between PPS and PLL began, and what it entailed as far as making arrangements for a surgeon to travel to

Ireland for consultations and surgery for clients who had made initial contact with PLL, who were advertising for persons

who might be interested in having cosmetic surgery carried out in Ireland. Any surgeon provided through PPS was a fully

qualified surgeon. He stated that before any surgeon could have theatre rights in Clane Hospital his/her qualifications

would have to be checked by the hospital, and that was done. He confirmed that neither Mr Moir nor Mr Carver were

employed as such by PPS. They simply managed their private practices in the way described, and had no responsibility for

how surgery might be carried out in any particular case.

Conclusions:

I am satisfied firstly that when performing surgery in Ireland, Mr Moir did so as an independent contractor. He was not an

employee as such of PPS. That company’s involvement is confined to the provision of essentially secretarial and

administrative services as described. They were the contact point for PLL when arranging for a surgeon to see clients and

where necessary to perform the surgery. Their duty obviously involved ensuring that any surgeon so provided was a

suitably qualified surgeon, but that is not the same as saying that PPS would be liable for any surgery which was

performed negligently, as in this case. Any such negligence is a matter between the patient and that surgeon, and

possibly between the patient and PLL with whom the contract for surgery was made. There has been no evidence to even

suggest that part of these arrangements involved the giving of an indemnity to PLL in respect of any negligence being

found against the surgeon. Those surgeons provided through PPS were not employees of PPS and there is no question of

any vicarious liability arising.

The fact that Mr Carver is a 50% shareholder in PPS does not alter his position. He was not in any way negligent in this

case. As it happens, Mr Carver was present at Clane Hospital on the day on which the plaintiff underwent her surgery

with Mr Moir. He was operating on other patients in an adjoining theatre at the hospital. While it is the case that in such

circumstances he was available to be consulted by Mr Moir if that need arose, it cannot be said that Mr Carver was in any

supervisory role in relation to the plaintiff’s surgery in the sense that he shared the responsibility to ensure that her

surgery was properly performed. Mr Moir was the surgeon. He was fully qualified to perform that surgery, and the

responsibility for the unsatisfactory outcome is the responsibility of Mr Moir.

I am satisfied therefore that it is the first named defendant who was negligent in relation to the plaintiff’s surgery. While

the second named defendant owed a duty of care to the plaintiff arising from its relationship with her, there is no

evidence that it breached its duty of care to her. It had no direct involvement in the surgery either directly or on the

basis of any vicarious liability, since Mr Moir was not its employee, and the surgeon provided by PLL, through PSS was

appropriately qualified to carry out this operation on the plaintiff. There is no issue about that.

As I have already stated, there is no case of negligence made out against Clane General Hospital.

In these circumstances, I am satisfied that the plaintiff is entitled to recover her damages from Mr Moir, the first named

defendant. No issue arises therefore in relation to any contribution or indemnity by the second and third named

defendants who were not guilty of any negligence. Neither therefore does any issue as between the defendants and the

third parties arise.

Accordingly, I will give judgment in favour of the plaintiff against the first named defendant in the sum of €80142.43.