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The Assessment of Damages for Negligent Cosmetic Surgery Abroad: Roger Mann (as Executor of the Estate of Denise Mann) v Towarzystwo Ubezpieczen Inter Polska S.A & Ors
- Mar 7, 2024
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Mann v Towarzystwo Ubezpieczen Inter Polska S.A and Ors is a useful first instance judgment on the assessment of damages arising from negligent cosmetic surgery abroad. The rising trend for such surgery suggests that travel law practitioners are likely to become well versed in claims of this nature. Aliyah Akram acted for the Claimant in Mann and this post is written by Jessica Muurman.
Background
Mrs. Mann already had a complex medical history, she has suffered from both physical and mental health challenges well before she embarked on cosmetic surgery. Significantly, in January 2010 she underwent gastric bypass surgery on the NHS and consequently lost more than 20 stone. This claim arises out of the cosmetic surgery she subsequently sought from a Polish clinic. It is worth noting from the outset that the medical evidence did not link Mrs. Mann’s sad death to the surgery.
On 24 September 2013, Mrs. Mann underwent a thigh lift and bilateral breast reduction. Following the surgery she noticed that her left breast was red and swollen and that her left nipple was black. These concerns were raised with her surgeon and the clinic, but dismissed. Mrs. Mann therefore returned to the UK a few days later. Upon arrival home Mrs. Mann’s condition deteriorated and, on 21 October 2013, she was admitted to hospital where she was diagnosed with left nipple necrosis, a wide area of superficial infection, and large abscesses on both thighs. She underwent emergency surgery for the abscesses and received IV antibiotics.
Mrs. Mann never fully recovered from the surgery. She was left with permanent complications including scarring, seromas, cellulitis and lymphedema, together with chronic pain and mental torment.
The Findings
The Judge noted the lack of easily comparable brackets in the Judicial College Guidelines but drew assistance from the chapters on scarring and injuries to internal organs in making an award in the sum of £37,500. He also made awards for care and assistance and travel expenses.
Whether the Claimant could recover the cost of the surgery, £5,341 and Mrs. Mann’s costs of travelling to Poland were a little more complicated. The judge noted the distinction between damages arising from breach from a contract versus those recoverable as a result of a tortious breach of duty. Contractual damages should put “the claimant into the position they would have been in if the contract had been performed”, while the measure in tort is “to restore as far as possible the status quo”.
It was “clearly not possible to wind the clock back” to put Mrs. Mann in the position she would have been in had the surgery either been carried out properly, or not carried out at all. David Pittaway KC, sitting as a High Court Judge, found that the surgery performed by Dr. Kalecinski was “so bad that it was valueless” and that Mrs Mann “derived no benefit from it at all and only suffered as a result”. Consequently, the cost of the surgery, together with associated travel costs to Poland, were allowed.
Procedural History
This judgment and previous judgments in the case make clear that this claim has had a tortuous history. There have been jurisdictional challenges and a protracted dispute over default judgment. The assessment of damages involved the clinic’s insurer rather than either the clinic or surgeon. An issue remains as to the extent of the insurers’ indemnity and in particular whether the limit applies to the costs of the claim. What is clear is that pursuing claims of this nature are unlikely to be straightforward.
This article originally appeared on the 12 King’s Bench Walk International and Travel Law Blog.