Castello v Gonschior [2021] EWHC 2742 (QB)

Date
14th October 2021
Court
Key Issues
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Judge

The case of Castello concerned allegations of negligently performed cosmetic surgery. Castello turned on expert evidence with the judge finding in favour of the Defendant, rejecting the allegations of breach of duty with respect to the cosmetic rhinoplasty procedure.

 

Introduction

The Claimant brought an action for damages for personal injury and financial loss arising from alleged negligence by the Defendant, a cosmetic surgeon, during a closed rhinoplasty procedure performed on the 10th of November 2014. Pre-operatively, the Claimant had a deviated septum. It is the Claimant’s case that the Defendant’s negligent surgical technique during the rhinoplasty procedure led to a further septal deviation, leaving the Claimant with a sigmoid or “S” shaped deviation. The Claimant contends that as a consequence her right nasal airway is significantly occluded, causing her to suffer from breathing difficulties, sleep issues, panic attacks, and other psychiatric symptoms which have impacted the Claimant’s private and professional life.

 

The Facts

The Defendant was at the relevant time a consultant cosmetic surgeon in private practice at the “Make Yourself Amazing” clinic in Fitzroy Square in London. He now practices exclusively in Berlin.

The Claimant (accompanied by a chaperone) consulted with the Defendant, stating that she felt her nose was too long and over-projected. He noted that it had a ‘crooked appearance’ caused by the left septal deviation. Using illustrations, he showed the Claimant that after surgical straightening of the septum, the healing process might cause the cartilage to ‘snap back’ to its original line. This was part of his explanation that the procedure did not bring any guarantee of success.

Although significant evidence was given at trial material to the Claimant’s pleaded case that there was no informed consent given to intentional manipulation of the septum, this case fell away because by the end of the trial the Claimant had limited her case by accepting that any manipulation of the septum was accidental.

Following the consultation, the Claimant and the Defendant entered into a contract for the Defendant to perform a closed rhinoplasty procedure on her and the documentation recorded her consent together with identification of various risks. The procedure was documented in a surgical note on 10 November 2014 and took about 45 minutes.

Post-operatively, the Claimant was happy with the outcome and it was recorded about 2 months’ after the surgery that she was ‘breathing well’. The Claimant’s evidence was that even at this stage she was suffering from ‘severe difficulty in breathing’ and, nor contrary to the notes, was she content with the appearance of the nose. However, by May 2015, the Claimant returned to the clinic complaining that her left nostril was completely blocked and that she was struggling to sleep and her sense of smell and taste was affected.

 

Issues at trial

Both parties accepted that if the Claimant could establish that the right septal deviation was caused by the Defendant’s surgical technique then it followed the Defendant would be in breach. The more pertinent question for Justice Lambert was therefore whether the Claimant’s right septal deviation was caused by the Defendant’s surgical technique or whether it was pre-existing, which, became the Defendant’s position as the case evolved over the course of the hearing.

 

Expert Evidence

The Claimant relied upon the evidence of Professor Kirwan, an aesthetic surgeon. Conversely, the Defendant relied on Professor Lund, an honorary consultant ear, nose, and throat surgeon, and professor emeritus in Rhinology. The expert evidence focused upon two topics: “the mechanisms whereby the septal deviation in the lower portion of the nose might inadvertently have been caused by the defendant’s surgery and the claimants’ current condition and the cause[s] of her condition” (para 40).

Professor Kirwan was of the opinion the right deviation may have been caused during surgery either by “direct trauma to the septal cartilage during over-extension of dissection or dissection in the wrong plane or secondary to the formation of a haematoma (again by either mechanism)” (para 42). Conversely, Professor Lund averred that over-extension or dissection in the wrong plane could not have caused the right-sided deviation of the septum. She said that as the nasal septum is a relatively large structure even if there had been some damage caused by slippage of an instrument, then only a portion of the septum would have been damaged. In order to deviate the septum, there would have needed to be some two or three fractures or incisions into the septum sufficient to create a flap which could be pushed to one side, or that a hole was made sufficient to push the septum ‘off base’.

 

Held: Claim Dismissed

Justice Lambert rejected the Claimant’s submission that res ipsa loquitur applied to the case: it could not be said that merely because the Claimant had breathing difficulties in relation to her nose that the claim in negligence was established. Secondly, the Judge indicated that she had not derived any assistance from evidence given by the Claimant about other patient complaints concerning the Defendant.

Instead adjudging the key question not to be whether there is a non-negligent cause of the deviation, but whether, the right-sided deviation “pre-dated surgery or was associated with surgery” (para 48). In considering this question, Justice Lambert identified three sub-issues:

(a) whether there is any reliable record of the course of the septum pre-operatively;

(b) by what mechanism the septum may have been distorted during or as a consequence of surgery; and

(c) the claimant’s current condition and the cause of her symptoms (para 51).

Concerning (a) Justice Lambert accepted that the Defendant on balance did perform an examination of the nose; but “failed to document the pre-operative record of a right-sided deviation of the claimant’s septum” (para 58). She also rejected the Defendant’s apparent suggestion during his oral testimony that his diagrams in fact showed the presence of a right-sided deviation. However, she considered that the immediate focus of the examination was higher up the septum at the point of the obvious cosmetic defect.

Mrs. Justice Lambert also preferred the Defendant’s expert’s opinion on (b), accepting that given the septum is a relatively large and firm structure, for it to have become deviated it would have been “displaced or detached from its adjoining structures at the crest and the base” (para 69). It was Justice Lambert’s opinion that “over-dissection…or dissection of the tissue in the wrong place” would be “very unlikely to lead to such an injury” (para 69).

As such, on the balance of the evidence, Justice Lambert was not persuaded the Claimant’s right septal deviation as caused intraoperatively by the defendant, finding instead the deviation pre-dated the surgery but was probably asymptomatic; with the deviation becoming symptomatic for several possible reasons including environmental and psychological factors (paras 69, 79). Finally, Justice Lambert added that the Claimant’s symptoms are unlikely to have been as bad as she now claims (c (para 79)). As such, the claim fails on breach of duty, with judgment entered for the Defendant.

Had judgment for the Claimant been given, the general damages would have been assessed at £13,000.

 

Our Comment:

Sarah Crowther QC, a barrister from our Clinical Negligence team commented on the case as follows:

This is an unusual case in that liability ultimately turned on a single question of fact which fell to be determined by the court choosing between two unreliable witnesses. The Defendant, whose contemporaneous note on the central issue of whether there was a pre-existing deviation of the nasal septum did not adequately address the point and whose oral evidence was a reconstruction of events that he could not recall and amounted to ‘wishful thinking’ that he had considered nasal deviation at the right time, might consider himself lucky that the Claimant only complained to her GP of breathing problems in 2016 and had given different accounts to other medical practitioners over time and so was found to be an even poorer historian than he was.

It is also an illustration of the importance of the management of expert evidence in clinical negligence cases. First selecting your expert: the key determinant of the outcome was the preference of the Court for the Defendant’s expert, who impressed as ‘modest’ despite her more extensive experience of nasal anatomy and careful explanation to the Court of the principles underlying her opinion. By contrast, the Claimant had relied on an expert with significantly more practical surgical expertise, but of a more general nature.

Secondly, the Claimant’s attempt to include in the trial bundle expert evidence for which permission had been refused by the Master was criticised.

Thirdly, the Claimant was taken by surprise at the course of the evidence during the trial and the development of her own expert’s evidence regarding the potential mechanism of the alleged injury. It shows that a key element of trial preparation is discussion with experts which goes wider than the narrow points in dispute, but also engages with the general principles in play and tests the explanations and evidence which the experts rely on in support of their conclusions.

Clinical Negligence claims are always extremely demanding to prepare and this example shows that even where the value of the claim is modest, those challenges are not reduced.

 

 

 

 

 

 


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