Zahir v Vadodaria

In clinical negligence claims concerning cosmetic surgery, an unsatisfactory outcome or the need for revision surgery does not itself establish negligence. The issue is whether the surgical technique fell below the standard of a reasonable body of competent practitioners at the relevant time. The burden remains on the claimant to prove breach; the defendant’s inability to explain an adverse result is insufficient, absent an applicable res ipsa loquitur case. Where the evidence supports a non-negligent explanation for the outcome, a causation analysis based on material contribution is unnecessary.

The claimant underwent rhinoplasty performed by the defendant and remained dissatisfied with the appearance of her nose. She later underwent revision surgery by the defendant and three further operations by another surgeon. Limitation and quantum were agreed, leaving breach of duty and, if necessary, causation for determination.

The remaining allegations were excessive removal of the right lower lateral cartilage and damage to the alar rim during the first operation. The central issue was whether the post-operative kink and asymmetry resulted from negligent surgical technique or from scar tissue and an uncorrected septal deviation.

1. Judgment for the defendant. The claimant failed to establish negligence in the conduct of the rhinoplasty.
2. The relevant question was not whether the outcome fell within the range of outcomes expected from competent plastic surgeons. It was whether the surgical technique on 24 July 2010 fell below the standard of a reasonable body of competent plastic surgeons practising in 2010.
3. The allegation of over-resection failed. The evidence supported the defendant’s account that callipers were used and that 7 mm of cartilage was left intact, exceeding the accepted minimum of 5 mm. The operation notes did not indicate inappropriate technique, and the later surgeon’s operative records contained no finding of excessive resection.
4. The allegation of damage to the alar rim also failed. The post-operative kink was not present before surgery, but there was no direct evidence of mishandling or other negligent conduct. The claimant’s argument that something must have happened during surgery was unsupported speculation. The burden of proof was not satisfied merely because the defendant could not provide an explanation.
5. The court rejected reliance on res ipsa loquitur. Cosmetic surgery has no guaranteed outcome, and neither an undesirable result nor the need for revision surgery necessarily indicates negligence.
6. The court accepted that the combination of developing scar tissue and an unrepaired caudal nasal-septum deviation could produce the kink shortly after surgery. That provided a satisfactory non-negligent explanation. The issue addressed in [2008] EWCA Civ 883 therefore did not arise.