Clarke v Kalecinski [2022] EWHC 488 (QB)

Lisa Pal v Dr Luc Damen, Belgo International Research, Applications and Development NV [2022] EWHC 4697 (QB)

Two cases (Clarke v Kalecinski & ors [2022] EWHC 488 (QB) and Pal v Damen & ors [2022] EWHC 004697) illustrate some of the difficulties faced by claimants in pursuing actions arising from surgery carried out abroad.

In Clarke, the Claimant wanted to undergo cosmetic breast and thigh surgery. She came across the website of a clinic based in Poland (D2) which was majority owned by a surgeon (D1). The website advertised consultations in the UK at a number of UK addresses, followed by surgery in Poland provided by UK-trained, UK-registered surgeons with fluent English language skills including D1. The Claimant duly underwent the procedures but experienced infection immediately afterwards which was not effectively managed by either the surgeon or the clinic. She returned to the UK in a state of acute sepsis and was immediately taken for wash-out surgery in an effort to control the infection and save her life. Three of the four unconnected surgical sites were found to be infected. The Claimant was required to undergo skin grafting; she experienced scarring and loss of confidence which prevented her continuing her previous job as a stripper and lap dancer.

The Claimant issued proceedings against the surgeon, the clinic and the clinic’s insurer (D3), the last of these pursuant to a direct right of action (a so-called “Odenbreit” claim). D1 and D2 served defences which admitted the existence of contracts and the existence of a duty in tort between the Claimant and each of them but denied breach of either the contractual or tortious duty. The parties proceeded on the basis that the proper law of the contract was English law and that the law of the claim in tort was Polish law (albeit on this latter point the Particulars of Claim were not explicit and had not been clarified despite a request from D3). In its skeleton served shortly before trial, D3 argued that the failure explicitly to plead the application and content of Polish law in the Particulars of Claim meant that English law should apply by default. The Judge, considering the background and the basis on which the parties had proceeded to date, allowed the Claimant to amend her Particulars to plead Polish law in relation to the tort. The Judge also allowed D3 to raise unpleaded arguments as to the standard of care applicable and the extent to which local safety standards required to be considered. The Judge also considered D3’s perhaps ambitious argument that notwithstanding D2’s admissions in its defence, there did not in fact exist a contract between the Claimant and D2; the Judge rejected this submission, finding on the facts that “this was one contract but involving both parties: the surgeon and all the other care givers at the clinic” (para 77).

Having dealt with these and other preliminary issues, the Judge went on to consider the substance of the claim. This was somewhat one-sided in so far as D1 and D2 had effectively ceased to participate in the action, serving no factual or expert evidence and providing little disclosure. However, D3 raised an argument of potentially wider application by its submission that “only local standards of medical operation were relevant in case of medical negligence performed abroad”, drawing an analogy with package holiday cases in which satisfaction of local standards (as to e.g. glass safety) was considered sufficient to discharge the contractual duty. D3 argued that the Claimant (who relied upon a UK plastic surgery expert) had adduced no evidence of a Polish standard and therefore her claim must fail.

The Judge disposed of this argument in two ways; first, in the context of this case “where it is a term of the contract that the first defendant would operate to the same standard as a UK surgeon, skilled in this specialism, and registered with the GMC, it is that standard, that applied to the activities in issue here. The care offered by the clinic likewise” (para 107, underlining in the original). Second, the Judge found that the breaches identified by the Claimant’s (unopposed) expert were “couched in such stringent terms that they cover any surgical and indeed clinical practice whether governed by local Polish customs or not” and “put paid to any subtlety of distinction between local custom and English practice that might if [D3’s counsel] were correct, in other circumstances be considered relevant” (para 109). The Judge went so far as to observe that “There are certain irreducible standards in life-threatening situations where local custom, practice and standards are irrelevant, and this was in my judgement, such a situation” (para 110). Judgment was duly entered for the Claimant against all defendants; however, it appears likely from the circumstances of the case that enforcement may only be possible against D3 whose limit of indemnity equated to approximately £38,500 on a claim worth around 4 times that amount.

In Pal, a similar factual matrix arose. The Claimant wished to undergo breast augmentation surgery and found the website of a Belgian clinic (D2). D1 was the surgeon who in due course performed the procedure. Unfortunately, it appears the outcome was not as wished (the details of which are not specified in the judgment) and the Claimant issued proceedings against the surgeon and the clinic in the English court, as was in principle her right as a contracting consumer pursuant to Article 18(1) of Regulation EU No 1215/2012 (Brussels recast). However, D1 and D2 both challenged the English court’s jurisdiction, arguing that the Claimant had failed to establish a “jurisdictional gateway”, in this case a “plausible evidential basis” for asserting the existence of a contract with each of them. Specifically, D1, the surgeon, argued that the contract was only with the clinic and D2, the clinic, argued it was only with the surgeon. After consideration of the documentary evidence and expert evidence adduced by each of the parties, Master Cook concluded that there was a good arguable case that the Claimant had entered into a contract with the surgeon (D1) but that the same could not be said in respect of the clinic (D2) and that the court therefore did not have jurisdiction over the latter claim.

These two cases serve as a reminder of some of the procedural and substantive complexities involved in pursuing claims relating to medical treatment abroad, as well as the potential for a hollow victory where limits of indemnity are applicable.