Cross-Border Clinical Negligence & The "Local Safety Standards" Defence

• Published date: 17 August 2022
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Consumer Law, Product Liability & Safety, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: 1 Chancery Lane
• Author: Mr Matthew Chapman QC

Clarke v Kalecinski & Others [2022] EWHC 488 (QB, Foster J)

It is increasingly common for UK consumers to travel overseas for cosmetic/aesthetic surgical procedures. On occasions, there is a sub-optimal outcome and this is sometimes because there has been causative (clinical) negligence by surgeon and/or clinic. The litigation (in the English courts) which can result from this has led to cases on jurisdiction (see, for example, Cole & Martin v IVI Madrid SL [2019] 9 WLUK 373 (QB)), on applicable law (see, for example, Naraji v Shelbourne [2011] EWHC 3298 (QB)) and even on foreign law questions about the party with whom the Claimant consumer/patient contracted: whether the performing surgeon or the clinic or both (see, for example, Pal v Damen & Others [2022] EWHC 4697 (QB) where Belgian law was applied to this contractual conundrum). However, it is rare to find an example of a case where an alleged incident of (crossborder) clinical negligence has given rise to a question about the standard of care to be applied to the surgical procedure in issue. The recent decision in Clarke v Kalecinski & Others (tried in June 2021 and reserved judgment published in January 2022: [2022] EWHC 488) provides an example of such a case.

In Clarke v Kalecinski the relevant surgical procedure was breast augmentation and mastopexy (uplift) and thigh liposuction. The Claimant consumer/patient was a UK national domiciled (at all times relevant to the litigation) in England. The Claimant's surgery was performed by the First Defendant: a Polish national domiciled in Poland. The First Defendant was registered with the General Medical Council in the UK and with the equivalent body in Poland. The Claimant's surgery was performed (and the relevant post-surgical after-care was provided) at the Second Defendant clinic: owned by a company incorporated in Poland. The Third Defendant, a Polish insurance company, was the insurer of the Second Defendant.

As to the background facts, in August 2014, the Claimant contracted for the cosmetic surgery procedures. She attended a consultation with the First Defendant in London in late November 2014 before flying with her mother to Poland for the surgery itself. The scheduled surgery took place under general anaesthetic and, after a night in the Clinic (and an examination by the First Defendant the following day), the Claimant was discharged to her Hotel accommodation. Very shortly after being discharged from the Clinic (in the evening of the same...