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A Botox user is suing her cosmetic surgeon in the US for the painful and debilitating side effects she suffered after treatment. Has the growth of cosmetic surgery in the UK suffered a rise in such claims? Veronica Cowan talks to Louise Hunt, a clinical negligence partner in the Midlands office of Alexander Harris...

If the Botox litigation in America, in which Irena Medavoy claims her cosmetic surgeon's use of the drug to alleviate migraine left her with painful and debilitating side effects, succeeds, it could put a frown on the face of a burgeoning cosmetic procedure. And not just in Tinseltown: the growth of this procedure in the UK has put a smile on the face of the manufacturer, Allergan, while removing laughter lines from the faces of its users. But the beauty industry generally has suffered a few wrinkles, with allegations of exaggerated claims, failure to explain risks, and misleading advertisements. This prompted a study by the National Care Standard Commission last year, the first formal regulatory scrutiny of clinical practice into private cosmetic surgery carried out. Many establishments scored poorly on procedures for checking the identity of their surgeons, validating their qualifications, and checking they had trained in cosmetic surgery techniques.

The Care Standards Act 2000, as amended in 2002, regulates cosmetic surgery clinics, and, according to Hansard (8 Jul 2004: Column 800W), the Private and Voluntary Health Care (England) Regulations 2001, SI 2001/3968 require all regulated independent healthcare establishments to have written statements of the policies to be applied and the procedures to be followed in relation to the provision of information to patients and others. The national minimum standards for independent healthcare expand on this, and each establishment is required to produce a patients' guide, to be reviewed annually. The aim is to provide patients with clear and accurate information about their treatment and its likely costs, and to ensure advertisements comply with the code of practice on advertising, and do not mislead.

While questions have been asked in Parliament over the years about controls on cosmetic treatments is there any increase in claims? Louise Hunt, a clinical negligence partner in the Midlands office of Alexander Harris, perceives that there is an increase in litigation. "Cosmetic surgery is Partner, Louise Huntwidely advertised, and more available, as well as being cheaper than it used to be". Yet another aspect is the proliferation of outlets offering less invasive procedures, so that defects can be tackled on the High Street of many towns. Hunt's team is handling several Boots' laser eye care cases, in which patients are alleging they suffered damage as a result. "They are at an early stage", she explained, "and we are not sure where they are going. If we had enough we would consider a group action, but might need to run a test case first".

Press reports suggest that around 10,000 people in the UK are having Botox injections, but Hunt is not aware of any litigation around this procedure. The commonest claims, judging from the bulk of settlement payments made by the Medical Defence Union (MDU), follow allegations of damage after breast augmentation and face lifts, with nearly 40% for rhinoplasty ('nose jobs') and face lifts. This is in line with Hunt's experience, although she has also "had cases about pinning ears back".

The MDU cites one of the key reasons for certain cosmetic surgery procedures leading to negligence claims as being high, and sometimes unrealistic, expectations of patients who undergo this type of surgery. This is broadly echoed by Hunt, who takes the view that, as a result, "the onus on consent is very high". Moreover, the procedure is usually sought for aesthetic reasons, as opposed to being life-saving "which is a complicating feature of this litigation, again raising the need for a high level of consent", she observed.

The MDU recommends accurate pre-operative patient assessment by a suitably qualified practitioner, recording the indications for surgery and any contraindications; advising the patient of the risks and benefits of undergoing surgery, and any other treatment alternatives available; informing patients of complication rates; and checking their understanding and assessing them for any unrealistic expectations. Hunt would go further, and impose a 'cooling off' period so that people have time to consider the implications". This is because cosmetic surgery is predominantly privately-funded, only being available on the NHS if there is some clinical or psychological reason to justify it, she explained. "Therefore, it is generating fee income, and the tendency is for surgeons to take it on". Patients should be given written reasons, so that there is fully informed consent, she adds, noting that this is what is required in the USA. "In Britain, doctors only have to warn of risks if a reasonably competent doctor would mention them", she said (Bolam v Friern Hospital [1957] as refined by Bolitho v City & Hackney Health Authority BLD 4771970000).

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