Cosmetic surgery results in death: Batt v Highgate Private Hospital

Posted by Alison McClure on

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In Batt v Highgate Private Hospital [2004] EWHC 707 (Ch) the claimant was the widower of Lorraine Alison Batt, who died due to clinical negligence following abdominoplasty, commonly referred to as "a tummy tuck". Mrs Batt's life was taken as a result of post-operative complications.

The significance of the case for the purposes of this article is in the High Court decision on whether a widower could recover damages in respect of the cost of the cosmetic surgery which resulted in his wife's death.

Several claims had been raised against the negligent surgeon who performed the operation.  Damages in relation to all claims were assessed. The courts used the usual principles to assess damages in relation to the past dependency on the deceased's care and future dependency losses, including the loss of a wife's care in the pre-trial period and the loss of services of a wife and mother.

In addition, and unusually, Mr Batt claimed for the cost of the operation paid to the hospital. This claim was made under the Law Reform (Miscellaneous Provisions) Act 1934. Mr Batt's reasoning was that his wife did not receive the benefit of the operation. This claim was considered both in contract and in tort.

Contract

The first issue considered by the court was that there were no direct contractual obligations between Mrs Batt and the surgeon who performed the operation. The contract was between Mrs Batt and the London Cavendish Clinic (International) Ltd. This rendered the claim in contract for the medical expenses unsuccessful.

Tort

A claim in tort could not succeed either since the cost of the operation did not result directly from the negligence of the surgeon. The cost arose from the contract between the deceased and the hospital. Therefore, even though the expenses were rendered futile by the tort, they could not be recovered.

This case is an example of the difficulty in assessing the damages in respect of a dependency claim. It is also an example of the inherent difficulties in recovering expenses rendered futile by a tort. Notably, H.H. Judge Darlow commented that to allow the claim for recovery of the cost of the operation in these circumstances risked potentially opening up "a large new claim, or category of claims, in cases such as this." He further emphasised that expenses rendered futile by a tort do not have the same importance in tort as they have in contract. Whilst in contract, the claimant is taking action in reliance on the defendant's promise, in tort he can only claim for expenses arising from the defendant's negligence. For these reasons, the claim of Mr Batt was disallowed.

For further information please contact Alison McClure in our Clinical Negligence Team

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About the Author

Alison sits on the BL Claims Solicitors Executive Board as a non-executive director, and is currently the head of Blake Morgan's Litigation and Dispute Resolution division.

Alison McClure
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