LAURA CLARKE v NOA CLINIC USLUGI MEDYCZNE SP. O. O

A cosmetic surgery provider and the surgeon may be jointly and severally liable under a single package contract for surgery and associated care. Representations about a surgeon’s registration, training and expertise may be contractual terms rather than mere inducements where they objectively form part of the basis on which the patient contracts. Where those representations promise a standard equivalent to that expected in England, that standard may govern both contractual and tortious duties. In any event, grossly substandard, life-threatening medical failures cannot be justified by reliance on local practices. Late pleading points should not defeat determination of the real issues where the case has long proceeded on a particular basis and no material prejudice is shown.

The claimant underwent breast and thigh cosmetic surgery in Poland after engaging with an English-language website, attending a consultation in London and corresponding with agents of the clinic. She claimed against the surgeon, the clinic and its Polish insurer for negligent surgery and post-operative care, in contract and tort. The surgeon and clinic admitted contractual and tortious duties, but the insurer challenged the pleadings, the applicable law, the contractual relationship and the relevance of English standards of care.

The court determined the contractual relationships, applicable laws, pleading issues, standards of care, liability and the insurer’s indemnity limit.

1. Preliminary and pleading issues. The claimant was permitted to clarify that Polish law governed the tort claim and to answer the insurer’s late arguments. Although the pleadings were imperfect, the parties had proceeded on the basis that Polish law applied, expert evidence had been served on that basis, and no measurable prejudice was established. Technical pleading points should not prevent the just determination of issues long in play where departure from the pleaded case is fair and can be addressed.
2. Contract. The evidence established one package contract involving both the surgeon and the clinic. The website representations, correspondence through the clinic’s agents, London consultation, surgery and post-operative care were all relevant. Representations concerning the surgeon’s standing and experience were not mere puff or inducements. They formed contractual terms requiring surgery by a GMC-registered surgeon proficient in plastic surgery and care to the standard expected of such a surgeon. The surgeon and clinic were jointly and severally liable under that contract.
3. Applicable law. The contract was governed by English law under Article 6(1) of Rome I. Polish law governed the tortious claim under Article 4(1) of Rome II. Matters of procedure and evidence were governed by English law, while the foreign law provisions concerning convention and practice were to be construed broadly.
4. Liability. Under the Polish law relied upon, tort liability required fault, damage and causation. The medical evidence established, on the balance of probabilities, inadequate surgery, inadequate infection control and seriously deficient post-operative treatment. The same standard applied contractually and tortiously. The failures were causative of the claimant’s injuries and fell far below any acceptable standard.
5. Local standards. The court rejected the submission that the claim necessarily failed without evidence of Polish medical standards. The contractual representations required the promised UK-equivalent standard, which also informed the tortious duty. Alternatively, the failures were so egregious and life-threatening that no distinction between local and English standards could affect the result. The package-holiday authorities did not determine the medical negligence issue.
6. Orders. Judgment was entered for the claimant against the surgeon and clinic in contract and tort, jointly and severally. The insurer was liable under its direct action and policy indemnity, subject to the admitted limit.