Not exactly “beachbody” ready: The negligent provision of VASER liposuction in Tracey Giles v Alexandra Chambers [2017] EWHC 1661 (QB)

The body image debate is one which women have been having for generations. What exactly is the “perfect body”? In renaissance Italy women were celebrated for their rounded bodies, full hips and large breasts; in Victorian England women were forcing their bodies into corsets, clinching in their waists to create an hourglass figure; in the 1960’s women burnt their bras and fashion models like Twiggy changed the ideal body type from curvy to tall and thin; and now, we have the “Brazilian butt lifts”, the “thigh gap”, the “bikini bridge” and “rib cage bragging”. It is no wonder that when faced with a daily barrage of seemingly unattainable bodies that some women turn to a surgical solution.

In a rarely reported case involving cosmetic surgery, HHJ Graham Wood QC (sitting as a Deputy High Court Judge) was asked to consider what Tracey Giles’ desired body outcome was and whether her surgeon, Alexandra Chambers, had been negligent.

Background

The claimant underwent VASER liposuction removal of fat from her thighs and buttocks. VASER liposuction is described as a minimally invasive treatment aimed at contouring and shaping the body; it uses pulsed ultrasound energy to emulsify the fat cells, which are then aspirated by the surgeon. By comparison, traditional liposuction just sucks out small areas of fat: it is not a two stage process.

By way of background, the claimant spent most of her life working in the beauty profession. She specialises in bespoke treatments involving permanent or tattooed makeup and has established a national reputation in the field. Due to her profile, physical attractiveness is of great importance, and over the years the claimant underwent a number of cosmetic treatments to the face and body.

The claimant first saw the defendant on 26 January 2012. There was a factual dispute regarding the nature and content of the discussions at that meeting. The defendant contended that claimant had asked for a “high definition” sculptured look, whereas the claimant’s evidence was that she had asked for a modest removal of cellulose to create a more feminine look with a thigh gap.

After the initial consultation, the claimant went away to consider the matter further, in the interim she underwent Botox treatment at the defendant’s clinic and eventually the VASER liposuction took place on 20 August 2012. Prior to the procedure, there was a further consultation which the defendant videoed. It was agreed that during that discussion the desired outcome was “more toned up and slender looking thighs and low pole of buttock”.

The actual procedure lasted several hours and it was recorded that 6170ml of fat had been extracted (although the accuracy of this record was disputed by the defendant). After the procedure, the claimant felt extremely unwell, was nauseous and in pain. She was advised to return home, put in a taxi although her legs were bleeding as a result of the procedure, and advised to wear pressure garments.

On 25 August the claimant was admitted to A&E suffering from dizziness and diarrhoea. She was given fluids and painkillers and discharged. On 4 September, whilst being treated at the defendant’s clinic, the claimant was found to have very low haemoglobin levels and was advised to attend hospital for a blood transfusion. She went to a hospital that evening, was given a blood transfusion and had her pressure garments cut off due to suspected compartment syndrome.

The claimant attended the defendant’s clinic for lymphatic massage and also saw another plastic surgeon, Mr Sorensen, for aspiration of the fluid from her legs. Her final appointment with the defendant was on 5 October 2012, at which the claimant expressed satisfaction with the procedure; however, the parties agreed that the true outcome of the surgery could not have been ascertained at this point.

Over the next few months, the claimant began to notice a far different appearance to her legs and buttocks. Her legs appeared to subside and as the swelling reduced, she saw that they had become uneven, bumpy and mottled. She could feel virtually no fat under the skin, just muscle and bone, and there was an obvious asymmetry in her hips. The claimant sought advice from alternative surgeons and embarked upon a program of fat grafting.

Whilst the defendant accepted that the cosmetic outcome was poor she did not accept that she had been negligent. In relation to liability, the court, therefore, had to decide three issues:

1. What type of cosmetic surgery to her legs had the claimant requested and contracted for with the defendant?
2. Was the defendant negligent and/or in breach of duty in the way she performed the cosmetic surgery?
3. If so, had the final outcome been caused or contributed to by any such negligent failures?

Breach of duty

Regarding the first issue, the judge had to weigh and consider the factual and contemporaneous evidence available. The judge did not find the defendant to be a convincing witness. He also noted that her assistant Victoria Virtuso had not been called to give evidence despite the defendant claiming that the errors in the notes were down to Ms Virtuso. Furthermore, the judge considered that it was “extraordinary” and “inconceivable” that the defendant had not recorded the claimant’s desired outcome in her notes when there was ample opportunity to do so, particularly if, as alleged, the defendant had counselled the claimant against her desired look. Finally, the defendant had also failed to produce the photographs which were purported to have shown to the claimant when she was choosing her desired appearance. Such photographs would have been easily available and the inference was that they supported the claimant’s position.

The judge concluded that on balance it was more likely that not that the claimant did not request the sculptured and muscled high definition appearance with the removal of substantial quantities of fat.

Although breach of duty was established, the judge went on to make some general comments.

Expert suitability

There was a dispute between the parties as to the admissibility of the defendant’s expert evidence. The order for directions granted permission for the parties to rely on the expert evidence of a “plastic surgeon”. The defendant’s expert witness, Dr Glancey, was a cosmetic surgeon and accordingly the defendant did not have permission to rely on her. Furthermore, Dr Glancey should have disclosed her relationship with the defendant as it transpired that she rented rooms from the defendant in Wimpole Street and they were also professionally connected through BABS (British Association of Body Sculpting). The judge, therefore, preferred the evidence of the claimant’s expert.

Causation

The court concluded that the starting point had to be that the claimant had been left with an extremely unsatisfactory outcome. Although the defendant argued that the claimant had not proven that the risk would not have materialised in any event, as there are inherent risks involved with a general debulking procedure, the judge considered there was no substance to this argument. The judge concluded that the risks were materially increased by the more extensive and aggressive procedure and he was satisfied on the balance of probabilities that if the claimant had had a measured degree of liposuction applied to selected areas she would not have had this highly unsatisfactory result.

Comment

In a post Montgomery world, it baffles me why clinicians, particularly in an area like plastic surgery which is so subjective, are not keeping accurate and comprehensive notes of their discussions with patients. The defendant, in this case, had the facility to video record consultations, which she did, in fact, do on one occasion, so why did she not do so for that all important discussion regarding outcomes? If the defendant had kept proper notes the outcome of the case may have been very different.

As a patient, particularly one electing to have cosmetic treatment, it is vital that your treating clinician understands your desired outcome. 2016 GMC guidance on Cosmetic Surgery states: “It is essential to a shared understanding of expectations and limitations that consent to a cosmetic intervention is sought by the doctor who will perform it, or supervise its performance by another practitioner.”I would, therefore, urge patients to confirm their expectations in writing as much as possible and to fully explore all possible risks and alternative treatments with their treating surgeon before undergoing any procedure.

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