Cosmetic Surgery Tourism: My Proposal!

Posted on July 26, 2011 by Julian Johnson

As a post-script to the recent resolution of my client's claim against a travel agency, promoting Thai cosmetic surgery, I now have to drive each day past a massive billboard on Railway Rd, Subiaco, promoting the services of another such agency. Clearly its a thriving business sector...

To protect those uninformed enough to think that breast augmentation surgery or laser eye surgery, in conjunction with 5 Star Accomodation in SE Asia, is a good idea + the 2011 equivalent of a beach massage in Bali or a pedicure at the local shopping centre, my modest proposal is to introduce legislation:

1) requiring such agencies to have comprehensive insurance against claims by those travellers suffering serious complications/adverse outcomes from their cosmetic procedure.

2) requiring such agencies to recommend and have prospective clients/patients sign an acknowledgement that they have been advised to seek indepedent local medical advice as to the sense (or otherwise) of the proposed treatment.

3) holding such agencies liable in the event of an avoidable adverse outcome from the foreign treatment.

Can't see it happening, but .... 

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Another Informed Consent Case fails at trial

Posted on July 16, 2011 by Julian Johnson

Maintaining the sobering record of Plaintiff claims based on informed consent, is a recent South Australian case, Coombes v Katsaros [2011] SADC 93.

The claim concerned alleged complex regional pain syndrome ("CRPS") said to have arisen following hand surgery.

The key to the Plaintiff's claim was his assertion that he ought to have been warned of the risk that such hand surgery, which was indicated, but not essential, could cause CRPS and so further suffering.

Evidence at trial was given suggesting some hand surgeons would provide such a warning, whilst others would not. The evidence as to the incidence of such complication was not clear, but accepted by the trial judge as occurring in a severe form in perhaps 1 in 2,500 cases.

In the circumstances, Judge Millstead was not convinced the Defendant had a duty to warn of such risk (see @ [267]). Interestingly, Judge Millstead appeared to place significant weight in his conclusion, upon the absence of any specific questioning by Mr Coombes concerning risks with the surgery.

The implication is that perhaps had he appeared more cautious about proceeding, questioning the doctor as to what may go wrong, a duty may then have arisen to warn of the complication that occurred.

Mr Coombes case therefore fell at the first hurdle. Given Judge Millstead's conclusion, it would have failed at the second (and more onerous) stage, assuming a duty to warn of the relevant risk arose, of showing that such a warning would have lead to the patient refusing to proceed.

 

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