A plastic surgeon has successfully brought an appeal against a first instance finding that she negligently allowed a patient to have surgery in reliance on a false impression of her medical advice. The Court of Appeal’s judgment clarifies the duty expected of doctors when giving advice.


The Claimant, then 28 years old, wanted to have breast augmentation surgery before her forthcoming wedding. Having already booked and paid for the operation, the Claimant visited the Defendant surgeon for a 30-minute consultation. The Claimant was determined to have the operation if she sensibly could, and underwent the procedure less than a week later.

However, she was not satisfied with the results. The Claimant was subsequently advised by the Defendant’s clinic that a mastopexy (an ‘uplift’ procedure) would be required within 10 months of the surgery.

The Claimant claimed at first instance that the consultation advice she received from the Defendant was negligent. She alleged that the Defendant told her that a mastopexy would not be required for at least 5 to 10 years post-surgery. The Claimant’s case was that, were it not for that advice, she would have waited until her mid-30s and then undergone a combined breast augmentation and mastopexy procedure. In effect, the Defendant’s advice caused the Claimant to have an operation which she now viewed to be unnecessary.

The Defendant’s case was that she told the Claimant that the effect of the augmentation surgery would not be permanent, and that ‘sooner or later’ a mastopexy procedure would be required. The Defendant claims that, when asked how soon that would be, she told the Claimant that it was impossible to predict.

In giving their evidence, the expert witnesses could not agree how soon after an augmentation procedure a patient would need to undergo a mastopexy to maintain satisfactory results. The Claimant’s expert volunteered a timeframe of 6 months, the Defendant’s expert predicted 2 to 3 years. It was common ground that no reasonably competent plastic surgeon would have advised a 5 to 10-year timeframe in the circumstances. To do so would have been negligent.

First instance decision

Judge Davey QC found for the Claimant. There were two aspects to his conclusion.

The first was a criticism of the time allocated for the consultation period, although this itself did not amount to an express finding of negligence. In evidence, the Defendant’s expert declared that he would allow 45 minutes for a breast augmentation first consultation. The Claimant’s expert went even further. He suggested that there should always be at least two consultations before surgery, and that an hour and a half at least should be allowed for a breast augmentation consultation if mastopexy was to be discussed also. In the circumstances, the judge did not consider a single 30-minute consultation to be adequate.

The second aspect, which did go towards the finding of negligence, was the judge’s own reconstruction of the consultation itself.

The judge was satisfied that the Defendant did not explicitly suggest a timescale of 5 to 10 years. However, he was sure that the Claimant would have pressed the Defendant for a clear timeframe as to when a mastopexy would be needed with questions such as “What do you mean sooner or later? Are we talking months? Years? Five years? Ten years?”. Further, the judge then found that the Defendant’s noncommittal answer of ‘sooner or later’ would have been interpreted by the Claimant as meaning 5 to 10 years.

In reaching his conclusion the judge embarked on his own line of questioning. However, at no point did he put his own reconstructed version of events to the Defendant. Most significantly, the Defendant was never challenged that she ought to have known that her noncommittal advice of ‘sooner or later’ could reasonably have been interpreted as meaning ‘5 to 10 years’.

Moreover, the judge’s interpretation of events was contrary to what was pleaded. The Claimant’s case was that the Defendant positively volunteered the 5 to 10-year timeframe, however the judge held that this timescale was probably introduced by the Claimant.

The judge concluded that the Defendant gave a noncommittal answer to a question that the Claimant did not say in evidence she had asked. The judge did not find that the Defendant knew, or ought to have known, that the Claimant had misunderstood her advice. Essentially the Defendant was found to be negligent because she failed to dispel an impression that she had not herself expressly given and which she neither knew nor ought to have known the Claimant had somehow derived.

The Appeal

The Defendant appealed, arguing that the judge’s findings were pure speculation. The case was heard by Lord Justice Tomlinson and Lord Justice David Richards.

It was agreed by the Court of Appeal that the circumstances of the present case were ripe for misunderstanding. Not only was the Claimant determined to have the surgery and prone to making errors but the Defendant was not always easy to follow. English was not her mother tongue, she spoke quickly and sometimes selected the wrong word to convey her meaning. As was noted by the judge, the ineligibility of the Defendant was a real issue in the case. When coupled with the all too brief consultation period, it was not surprising that a misunderstanding developed between the parties. However, the question remained as to whether this misunderstanding amounted to negligence on the part of the Defendant.

The appeal was allowed and the case was dismissed.

Their Lordships agreed that the judge’s version of events was unfounded and amounted to speculation. It was neither right nor fair to the Defendant to be found liable on a basis which was neither pleaded nor put to her at trial.

The correct and objective approach that the judge should have taken is to consider whether anything said or done by the Defendant would have been reasonably understood by a reasonable patient to be an assurance that surgery would be unnecessary for at least 5 years. Applying that approach, a finding of negligence could not be justified.

In reaching their decision the Lord Justices also considered the Montgomery[1] test of materiality. In brief, a doctor should take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment. A risk is ‘material’ if a reasonable person in the patient’s position would be likely to attach significance to it. Considering the importance that the Claimant attached to avoiding a mastopexy in the near future, the Claimant argued that a clear timeframe for its requirement should have been given as part of the Defendant’s advice.

The matter turned on whether the Defendant’s response of ‘sooner or later’ was sufficiently clear, having regard to its material significance to the Claimant. Given that the experts could not agree what would constitute a reasonable response to a specific question regarding a timeframe, in the circumstances, a noncommittal answer of ‘sooner or later’ was as accurate and clear as any advice could have been. As was submitted by her counsel, the Defendant was under no duty to give information which she could not give.


Their Lordships’ judgment will be welcomed by medical professionals. A defendant medical professional should not be liable unless she is responsible for a patient’s wrong impression, or she takes no steps to correct a patient’s misunderstanding when that misunderstanding ought to be apparent. Further, this case shows that the wide net cast by Montgomery will not save every claimant; noncommittal advice may be adequately clear where specificity is impossible.

[1]Montgomery v Lanarkshire Health Board (General Medical Council Intervening) [2015] AC 1430