The Case of Harley Medical Group

Nigel Poole Q.C.
By Nigel Poole Q.C.

Nigel Poole Q.C. is a barrister specialising in clinical negligence and has particular experience in cosmetic surgery litigation.

The Harley Medical Centre Limited has gone into administration. Where does that leave those of its patients who have been dissatisfied with their treatment?

This blog addresses the relationship between patients and the providers of cosmetic surgery services, in the light of the news that The Harley Medical Centre Limited has gone into administration. By "provider" I mean a business rather than an individual surgeon.

Legal Liability
Typically a patient responds to advertising or promotional material from a provider, contacts the provider, speaks initially to an employee of the provider, enters a contract with the provider and pays the provider for treatment. Nevertheless, when things go wrong and providers are sued, more often than not they contend that they do not provide cosmetic surgery, they merely introduce the patient to the surgeon and only provide the facilities to allow the surgery to take place. Thus, if the surgeon makes an error causing injury to the patient, the provider contends that it is not legally liable.

That contention is controversial. Much will turn on the terms and conditions in the contract (few patients read the small print) and the circumstances in which the contract was entered. So, notwithstanding the provider's denial of liability, it may be found to have contracted to provide the surgery itself. The provider may also be held to have had a duty of care to the patient and may be liable in negligence for injuries caused.

The provider is more likely to accept that it supplied implants, nursing services or theatre equipment pursuant to contract. By law, goods supplied under contract by a business to an individual should be of satisfactory quality.

Surgeons are always potentially liable in negligence for injuries caused to their patients, whether or not they are also liable in contract. Surgeons ought to have full professional indemnity insurance to cover their surgery and pre-operation advice, although I have had cases involving surgeons based abroad, but operating in the UK, who did not have full insurance. It may sometimes be difficult even to find the surgeon who lives abroad, let alone to recover compensation through his/her insurer.

If the provider does not have effective insurance and goes into administration then there will be very limited assets with which to meet any legal liability to pay compensation to patients. Will the provider have insurance for its liabilities? It seems as though a number - who knows whether it is the majority or a minority? - do not. I do not know whether the Harley Medical Centre Limited had insurance to cover claims against it by patients, including claims in respect of PIP implants, but if it did, then it is surprising that it needed to go into administration.  Financial data  for the company in recent years is available on the internet.

When a Cosmetic Surgery Clinic Goes into Administration

If the Harley Medical Centre Limited was not insured in respect of its liabilities to injured patients then those patients may have nowhere to go to recover compensation. Some will be able to sue their surgeon where the injury is due to surgical negligence. Others who cannot prove negligence, or who cannot locate their surgeon, or whose surgeon was not fully insured, may have no means of recovering compensation.

On 17 November 2012 The Harley Medical Group (The Harley Medical Centre Limited was an associated company) tweeted; "Our business continues as normal following a financial restructuring. Nothing has changed for our patients. Same care, clinics and surgeons." But the restructuring may mean a significant change for patients seeking compensation from the Harley Medical Centre Ltd unless it was fully insured in respect of its potential liabilities to injured patients and that insurance remains valid.

The Harley Medical Group's mission statement includes the following: "Our reputation has been built upon trust. Honesty, openness and assurance are fundamental to the relationships we build with our patients".

In that spirit  perhaps The Harley Medical Group could make a full statement on its website clarifying its insurance position and openly stating whether patients who are found entitled to compensation from the Harley Medical Centre Limited,  in respect of treatment provided at its clinics or hospitals, will receive full compensation.

Could other providers go into administration? Of course. This case is not the first and it will not be last. So patients seeking cosmetic surgery may want to ask their provider about their insurance cover as well as seeking confirmation of their surgeon's insurance. Insurance should cover the period when the advice and treatment is given and not just the period when a claim is made. Does it cover the supply of products such as implants? Is there a limit to the cover for any one claim? Does it cover pre-operative advice? Patients may also want clarification in writing as to with whom they are entering a contract and what exactly is the provider agreeing to provide?

I presume that the Harley Medical Group will continue to honour their policy in relation to PIP implants, but clearly that policy does not include the payment of compensation.

Credit Cards
If a patient pays for treatment by credit card then there is a possibility of recovery of compensation through the supplier of credit.

A Level Playing Field
Even the best run hospitals will, on occasion, have to meet valid claims for compensation by injured patients. The NHS will always honour its legal liabilities to injured patients, so why shouldn't private providers be required by regulation to take out insurance so that they do the same, particularly when the NHS is expected to treat private cosmetic surgery patients when things go wrong? Of course if they do not pay insurance premiums then private providers of cosmetic surgery will be able to offer lower prices to patients. But who ends up paying the price for cheaper treatment?

Hey, wait!

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