On the face of it, there’s been a crackdown on cosmetic surgery. But is it enough to keep rogue practitioners from causing harm to unsuspecting patients?
In this episode of Law Matters, Practice Leader of Health Law, Rosemary Listing, talks to barrister and nurse, Ngaire Watson. Ngaire specialises in health and medical litigation and is also a spokesperson on health law and medical negligence with the Australian Lawyers Alliance.
Rosemary and Ngaire discuss the problems within the cosmetic surgery sector and how several reforms introduced in 2023 will impact the industry from a health and safety perspective.
In this episode you’ll learn:
- About the different reforms that have been introduced for cosmetic surgery, specifically around advertising, online presence and the use of the word ‘surgeon’
- Why rogue practitioners are so difficult to police
- What options are available if you’ve been a victim of cosmetic surgery gone wrong.
Disclaimer
While this podcast is aimed to be informative, it is not intended to be a substitute for legal advice. You should see a solicitor for complete advice that relates directly to your situation.
For more information please visit:
- Listen to our previous episode of Law Matters on Cosmetic Surgery.
- Find out more about the law and Medical Negligence.
If you have a legal issue and live in NSW you can find out more at Catherine Henry Lawyers, or call the team on 1800 874 949.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:01):
As health and medical lawyers,unfortunately a lot of our work is
representing people who've had pooroutcomes in our health system.
In this episode of the Law Matterspodcast, we're looking at new reforms and
standards that have been introduced in thefield of cosmetic surgery after some high
profile class actions put the problems ofthe cosmetic surgery industry into plain
(00:23):
view.
We've spoken about cosmetic surgery in aprevious podcast episode where we looked
into the problems plaguing the industryand gave some insight into how to identify
a reputable surgeon.
We link to that in the show notes.
This episode will take that conversation alittle further by looking into the new
reforms.
(00:43):
Practice leader in health law at the firm,Rosemary Listing, will host this episode
and she's going to be talking to New SouthWales barrister, Ngaire Watson.
Ngaire specialises in health and medicallitigation and she's also a registered
nurse.
In fact, she's been registered for 36years.
She's also the spokesperson for medicalnegligence and medical law with the
(01:07):
Australian Lawyers Alliance.
All of this makes her perfect to talk toabout this important subject.
I hope you get a lot out of this episode.
Hi, I'm Rosemary Listing.
I'm practice leader in health law withCatherine Henry Lawyers.
And today we're talking about somethingI'm seeing in my work far too often,
(01:32):
negligence in cosmetic surgery.
Contrary to what social media may have usbelieve, cosmetic surgery is not just
something for the rich and famous.
Quite often, it is the most vulnerable inour society who are at risk of engaging
with a cosmetic surgeon who is notqualified or uses practices
that endanger patients.
(01:53):
There have been some promising changes inthis space, but I wonder if it's enough.
To talk about where we are at and where weshould be heading, I'm speaking to Ngaire
Watson, a New South Wales nurse andbarrister specializing in health and
medical litigation.
Ngaire, welcome.
Nice to be talking to you, Rosy.
(02:13):
When it comes to your work in health andmedical litigation, how much of that work
is in the cosmetic plastic surgery space?
In preparation for this conversation, Iwent back and had a look at my caseload
over the years and I could recognize thatI constantly have at any one time at least
(02:36):
one, potentially more cases of medicalnegligence litigation related to cosmetic
surgery.
And generally speaking, when those kindsof cases...
come to me, they're usually of a veryserious nature.
So it's something I see constantly.
(02:58):
I also think given the exponential rise incosmetic surgery across the board in
Australia, the amount of surgery that'sbeen performed, that I don't consider that
that's going to change anytime soon.
Ngaire, of course preserving the identityof
these cases, can you tell us some storiesthat were particularly confronting or
(03:23):
memorable for you?
Yes, I went back and had a look at some ofthe cases that I've litigated in recent
times.
The one, probably one that stands outparticularly was a woman who had a
following large weight loss, she was toldthat she was going to be given a tummy
(03:46):
tuck and
Her thighs would be fixed.
But what actually happened is that shedeveloped a catastrophic infection with
necrosis.
The skin died.
She became septic.
She nearly died.
And she was left with absolutelyhorrendous scarring throughout her torso
and her thighs.
(04:08):
And the end result left her extremelydisfigured and really
ability to have corrected surgery to fixit.
That's at a particularly serious end withwhere a person nearly died.
But then there are other kinds of caseswhich are significant too.
(04:30):
And it's, I should also hasten to say it'sa very gendered area of litigation.
Yes, men are having cosmetic surgery too,but the vast majority are female.
So therefore it's going to follow that.
that most of the litigation is going toinvolve women.
Another case that I can recall that wassignificant for the woman, although in
(04:55):
terms of the damage, it wasn't lifethreatening, but she had this woman,
relatively young woman, wanted a breastaugmentation and in the process, the
surgeon accidentally cut the ducts to hermammary gland.
So she was unable to breastfeed.
She had been, it was very important to herthat she be able to breastfeed.
(05:16):
post-surgery and she'd been assured thatshe would be able to do that.
But in fact, that couldn't happen.
So, uh, that was a very serious injury toher and particularly from a psychological
point of view.
Another case I can think of is a woman whohad some minor kind of skin condition on
(05:37):
her nose and that rather than doing abiopsy, the surgeon went ahead and did
this very elaborate.
resection and a flat graft, which reallywas kind of a very large, large surgery
when in fact if he had biopsied her nose,it would have been just found to be normal
(05:58):
tissue.
She didn't need it excised at all.
Another case of a woman who wanted to havea, she'd had breast augmentation 15 years
prior she asked, she said she wanted toover the years, gravity had...
had done its work and she wanted to have abreast lift.
(06:19):
The surgeon went ahead and did a breastlift but failed to notice that the 15 year
old implants had ruptured.
And so he just went ahead and operated onher with the ruptured breast implants in
place.
And after the surgery, one of thoseimplants made its way into her armpit.
(06:40):
So obviously she needed to have thatsurgery and have it all removed.
And the end result.
probably means that she can't haveimplants at all.
So she's not very happy with that outcome.
So that's just a kind of a small snapshotof some cases I've seen recently.
Thank you for sharing that with us,Ngaire.
(07:00):
Whilst they're confronting stories, Ithink that our listeners will gain some
value from understanding some of thethings that can go wrong and perhaps that
there's people out there that can helpthem with these experiences.
So let's talk about how the industry isregulated and what types of reforms are in
(07:23):
place in order to assist people from,well, in order to prevent these types of
injuries occurring.
The new cosmetic surgery standards wereput in place in 2023.
These standards include the need for areferral from a GP along with a general
health and psychological assessment.
What do you think of these new standards?
(07:45):
I think that there's certainly a move inthe right direction that particularly the
psychological assessment.
My understanding having spoken to cosmeticsurgeons is that what they're trying to do
is to be able to identify people with bodydysmorphia because those particular group
(08:06):
of people are very likely to seek outcosmetic surgery and they're also very
unlike unlikely
to be satisfied with the end result andwill want to come back for more and more
surgery.
And they may also be a group that islikely to litigate on the basis that
they're unhappy with the outcome.
(08:27):
So I think that that's a good move.
I think that all of improving standards,any improvement on standards and
guidelines is beneficial.
what the net effect is going to be becauseas you're aware, we have a three year
(08:47):
limitation period and the cases that arealready out there are still going to be
moving through the system because thesechanges only came into place last year.
So I think it will take some years beforewe really know how much effect that
they're going to have in terms of adverseoutcomes and litigation.
(09:09):
Ngaire, some websites use phrases like themummy makeover.
How dangerous is it to target oneparticular group and almost make it sound
like this invasive surgery is somethinglike going to a day spa?
I think it's highly problematic.
And specifically with the new guidelinesthat came in last year, those kind of
words are supposed to no longer be used.
(09:33):
So in preparation for this podcast, I didwhat I actually do on a fairly regular
basis is.
have a look at what I'm finding on theinternet in high target market areas,
places like Sydney, the Gold Coast,they're high volume areas for cosmetic
surgery.
(09:53):
And I found that there are still cosmeticsurgeons that are using the term mummy
makeover.
Strictly speaking, they are in breach ofthe guidelines if they're doing that.
They're also meant to remove any images, Imean, it used to be
very, very prevalent.
This has definitely changed in recentmonths.
(10:13):
In my view, is the use of bikini models,long-terrain models, to try and
demonstrate what the outcome was going tolook like.
And in most cases, they were extremelyunrealistic about what anybody could hope
to achieve following surgery.
So they were, they were very misleading.
By and large, most websites now haveremoved those kinds of images.
(10:37):
and I can see a tightening up of thelanguage, but there are still some
outliers.
There are still some websites wherethey're still referring to mummy
makeovers.
The ones that have actually specificallyremoved that have kind of just adjusted
their language.
They're now calling it post-pregnancysurgery.
(10:58):
So even though the colloquial language hasbeen removed, it's still clear that
they're targeting a market
that after pregnancy, after childbirth,that your body needs to be, you know,
you're potentially going to want toconsider cosmetic surgery to correct what
(11:18):
you regard as deficiencies.
So I guess, technically, it's animprovement, the remove, you know, not
using colloquial language anymore, butit's still clear who the target market is.
and those people will still be drawn tohaving surgery, I suspect.
(11:42):
Let's talk about the term surgeon.
In September 2023, as part of the widerreforms by the Medical Board of Australia
and the Australian Health PractitionerRegulation Agency, or AHPRA, this term was
restricted to mean someone who had trainedin surgery, ophthalmology, gynaecology or
obstetrics.
I think it's important to say that beforethen,
(12:02):
Some of the doctors who were callingthemselves cosmetic surgeons were not
surgeons at all.
They've not done the training to become asurgeon.
Rather, they had trained to be a GP orother skin specialist.
Ngaire, have you seen any real lifeimpacts being made with this change yet?
Uh, I would say it's difficult again,because it's still relatively new.
(12:23):
It's going to be difficult tonight untilwe get past the, you know, three year
limitation period.
I have definitely in years gone
are litigated people that call themselvescosmetic surgeons that were actually no
better qualified than a GP and that they'dbeen very poor outcomes.
So I think that restricting the usesurgeon is definitely a move in the right
(12:47):
direction.
There is a group that I think remains abit of a concern, which hasn't been
captured properly by this regulation,which they are called pediatrics surgeon
surgeons.
They are, they're a relative relativelysmall group of health professionals who've
(13:08):
undertaken training to treat specificallyfeet.
And they call themselves surgeons.
And I'm, I have some concerns about theextent of their training.
They're not, they're not, they don't fallunder what we would consider the typical
pathway for a surgeon to train.
(13:28):
under the Royal Australian College ofSurgeons or RACs.
They don't fall under RACs.
And I believe that there are some examplesof some poor outcomes.
So somehow they've slipped through the neta bit and it's going to be an area to
watch to see what happens in thatparticular space.
(13:51):
But I think by and large to restrict theterm, the use of the word surgeon
definitely a good move because generallyspeaking, I believe that once a patient
thinks that they're seeing somebody whocalls themselves a surgeon, they believe
that they've got a proper surgicaltraining behind them.
(14:12):
But previously that wasn't the case.
Virtually anybody could call themselves asurgeon.
So it remains to be seen how much, youknow, that changes litigation and safety.
But again, any regulation that...
proves that clarifies the language thatgives the public better information about
(14:32):
what to expect I think is definitely astep in the right direction.
So let's talk about serial offenders whichare surgeons or doctors who have treated a
number of women in a similar way and womenhave suffered similar types of
complications.
These serial offenders that are known topeople like you and I, do you think these
(14:53):
reforms and standards go far enough?
to stop those who are known for theirnegligence?
I don't think any of the measures havedone really gone anywhere to deal with the
serial offenders.
The guideline changes that we've just beendiscussing don't address this cohort at
all.
And I think that they are a significantproblem.
(15:15):
I have dealt with serial offenders onquite a few occasions, and I've actually
done some research in this area.
It is known statistically that once adoctor, a surgeon, if you like, has had
one complaint, two complaints, thatstatistically the likelihood of them
(15:36):
continuing to have more complaints madegoes up over time.
And it seems that in my experience, AHPRAseems to be really quite slow to act, to
deal with them, that you have to be afairly significant serial offender.
before AHPRA will actually take action andthat there will be conditions put on their
(16:00):
registration to limit the way in whichthey can work.
I think that there's another problem withserial offenders is that you and I may
know how to search AHPRA and find out whatthe conditions are on the registration of
any particular medical practitioner,especially serial offenders.
But if...
(16:21):
a member of the public, a person who wascontemplating having cosmetic surgery, put
in, typed into Google the name of adoctor.
Even if they have conditions on theirregistration, it will not come up and
Google.
It will not take them.
It will not direct them to the AHPRAwebsite.
So they have no idea if a surgeon thatthey're planning to consult has
(16:47):
restrictions on their practice or not, orhas any history.
of problematic or adverse outcomes.
It gets worse too, in that most times whenconditions are placed, they may be there
for two, possibly even three years,depends on how serious the breaches are,
(17:10):
and then they disappear.
So even if you go back to AHPRA after thattime, you won't find any history of any of
the problems.
I think that the problem of serialoffenders is not really being dealt with
properly yet by AHPRA.
I think that AHPRA is, I'm assuming theydo their best, but they're a very big
(17:31):
organization, quite unwieldy, and it takessome time, quite a lot of time to act on
notifications and complaints.
And I think that the serial offenderproblem will continue on pretty much.
unabated until they do somethingdifferently.
(17:52):
And Ngaire, why don't these newregulations stop those serial offenders,
do you think?
I'll explain.
In my view, it's because they fall intothe category of rogue doctors and that no
amount of guidelines or structure or rulesput in place are really going to govern
(18:14):
them.
In their own minds, they do what theywant.
they do quite independently of whatanybody thinks.
And I'm sure Rosy would have known thesecharacters like Dr.
Lanza, people whose behavior is reallyegregious and just so outside what is
(18:35):
considered to be acceptable conduct thatthey're not interested in guidelines.
They will just do what they want to doregardless, and that they're essentially
incompetent.
Um, I encountered people who are justfundamentally incompetent and no amount of
guidelines is ever really going to pullthem into, into line.
(18:56):
They're just a force all on their ownuntil somebody tries to stop them.
And do you think that the regulator isdoing enough to?
Well, that's what I was saying about AHPRAis slow.
AHPRA is very slow.
There's, there's been some good research.
There's even a, an Australian.
researcher Marie Bismark, if you'refamiliar with any of her work, where she
(19:19):
actually looked, she went and did aretrospective study.
She was able to access records out ofinsurance companies to look at offenders.
And it's concerning what she was able toshow that after one, if you've had one
complaint, the chances of getting a secondone go up, after the second one it goes
(19:40):
up.
And she was reporting in her research,people who had up to 10 complaints.
who were still working.
Now these aren't all necessarily cosmeticsurgeons, but they are people who are
really impervious to being told what todo.
What kind of reforms would you like to seebe put in place?
(20:02):
I believe that there are methods.
It's called search engine optimization.
It is IT tech stuff, but I believe thereare ways that where if I...
If I type in Dr.
X into Google, that it would be able tolink through to AHPRA.
(20:23):
I believe that there are technicalbarriers to that currently that could be
addressed.
They may not be terribly easy, but if youcan Google a doctor's name and you can go
straight to their website, or you can goto rate, it'll turn up rate MDs, or it'll
take you to Facebook, or it'll take you toall kinds of places, anywhere but AHPRA.
(20:44):
precisely what the technical requirementswould be for that change to be made, but
I've been told it is possible.
But yet there's not been any appetite todo it and I can't answer why.
Okay.
We work together at times to run medicalnegligence claims against offending
cosmetic surgeons.
It's a process we know well, but I know itcan be intimidating for both legal teams
(21:06):
and clients.
I wonder if you could talk through thatprocess a little.
I think it's primarily a daunting process
potential client or a patient that's beenexperienced an adverse outcome.
For you and I, I don't think it's adaunting process or difficult because we
understand this field of law.
(21:28):
Generally speaking, these clients arequite traumatized.
The nature of the injuries that they comewith, particularly for women, generally I
see in most instances psychological harmthat comes along.
with a physical injury.
It can make it difficult for a person toeven contemplate whether or not they have
(21:51):
a claim, what to do about it.
So they have to first go to a lawyer.
The process is lengthy.
As you know, it can take, it's not unusualfor it to take 18 months from the point of
connecting with a lawyer and finding outthat you've got a case until a case is
(22:11):
concluded.
In most instances, in my experience, thedefendant will deny wrongdoing, will deny
liability.
So the person has to go through quite ajourney to get to a point where they may
consider that they've achieved some kindof justice for the problem that they've
(22:33):
come with.
So it's a difficult thing for anybody tocontemplate.
And that's why it becomes very importantthat...
when people with who've been injured inthe process of having cosmetic surgery,
that they find themselves with lawyers whoare experienced in the field.
(22:54):
Because it's something that you really doneed to know the groundwork of how the law
works, how to guide somebody through theprocess, because the client needs to be
cared for, so that they don't actually,you know, receive more trauma, in my view.
So,
having lawyers that actually understandthat the process is really important and
(23:18):
that they need to be able to be informedalong the way so that they understand what
the steps are and that they have theirexpectations managed so that they are
realistic.
And if all of those things are in place,then I think that the process can have a
good outcome for a client and that canhelp.
(23:42):
get some closure for whatever's happenedto them.
How successful do you think the legalprofession is in achieving some sort of
justice at the moment?
Well, following on from my previouscomment, I think that it's quite, first of
all, the way in which the lawyers workwith the client, I think is an important
factor in how successful it is.
(24:05):
What the law is a blunt instrument.
It can't restore a person to how they werebefore.
whatever went wrong happened.
The only outcome that can be achieved is afinancial one.
And hopefully that can put a person in aposition whereby they can at least have
something corrective done, if that'swhat's required, or if they need
(24:28):
psychological treatment that they canundertake that.
But there are limits to what the legalsystem can do.
I think at the moment, it's probably,there's not a lot more that could be done
short of making it more difficult.
And I don't see any solution to this fordefendants to deny liability.
(24:51):
I think that sometimes the insistence ofdefendants to fight is unfortunate.
But lawyers who work in this space arevery familiar with that experience and
generally know how to
in the way it should, I think that peoplecan get a good outcome after something
(25:15):
that's really been a very distressingexperience.
Okay, and we'll finish on a really broadquestion, just looking to the future.
Where do you think the industry isheading?
I expect to see, if anything,notwithstanding the changes to the
guidelines, I don't see really thischanging a great deal in terms of volume.
(25:39):
mainly because it's a growing market.
It's getting bigger, not smaller.
I've seen that in the years that I've beena barrister.
It's just a burgeoning market.
There's also cosmetic medicine, with soinjectables and so forth.
That's a growing space as well.
(26:00):
And more and more what as you said in theintroduction, this used to be the, you
know, the
realm of people who had a lot of money orcelebrities, but now it's everybody.
And also, as I said, it's a genderedmarket, especially skewed to females, and
the market is getting younger and younger.
(26:22):
I think we can see social media as playinga role in that.
Influences are playing a role in that.
All of the forces are driving volume up.
It's a very lucrative area of medicine.
So that is going to attract practitionersinto it for that reason too.
So I don't actually see this as actuallygoing away at all.
(26:47):
I think it's probably going to the numbersof people are not going to change.
In fact, they may go up as more proceduresare done.
Well, look, thanks so much for your timetoday, Ngaire.
It's not a...
a most positive note to end on, but we'rehopeful that as lawyers in this field, we
can deliver some sense of perhaps helpvictims to see what happened to them in a
(27:13):
different light and reframe theirexperiences to realise that they weren't
at fault for what happened to them.
So we just want to thank you very much forcoming on the show today and we look
forward to speaking to you in the futureabout your ongoing work in this field.
You're very welcome.
Thank you.
(27:34):
I hope you got a lot out of this episodeof Law Matters.
Thank you to both Ngaire Watson and mycolleague Rosemary Listing for their time
and expertise.
I'm Catherine Henry from Catherine HenryLawyers.
And if you've been a victim of cosmeticsurgery gone wrong and you'd like to take
the matter further, please contact my teamat Catherine Henry Lawyers.
(27:55):
This podcast was produced by Pod and PenProductions.
As health and medical lawyers,unfortunately a lot of our work is
representing people who've had pooroutcomes in our health system.
In this episode of the Law Matterspodcast, we're looking at new reforms and
standards that have been introduced in thefield of cosmetic surgery after some high
profile class actions put the problems ofthe cosmetic surgery industry into plain
(00:23):
view.
We've spoken about cosmetic surgery in aprevious podcast episode where we looked
into the problems plaguing the industryand gave some insight into how to identify
a reputable surgeon.
We link to that in the show notes.
This episode will take that conversation alittle further by looking into the new
reforms.
(00:43):
Practice leader in health law at the firm,Rosemary Listing, will host this episode
and she's going to be talking to New SouthWales barrister, Ngaire Watson.
Ngaire specialises in health and medicallitigation and she's also a registered
nurse.
In fact, she's been registered for 36years.
She's also the spokesperson for medicalnegligence and medical law with the
(01:07):
Australian Lawyers Alliance.
All of this makes her perfect to talk toabout this important subject.
I hope you get a lot out of this episode.
Hi, I'm Rosemary Listing.
I'm practice leader in health law withCatherine Henry Lawyers.
And today we're talking about somethingI'm seeing in my work far too often,
(01:32):
negligence in cosmetic surgery.
Contrary to what social media may have usbelieve, cosmetic surgery is not just
something for the rich and famous.
Quite often, it is the most vulnerable inour society who are at risk of engaging
with a cosmetic surgeon who is notqualified or uses practices
that endanger patients.
(01:53):
There have been some promising changes inthis space, but I wonder if it's enough.
To talk about where we are at and where weshould be heading, I'm speaking to Ngaire
Watson, a New South Wales nurse andbarrister specializing in health and
medical litigation.
Ngaire, welcome.
Nice to be talking to you, Rosy.
(02:13):
When it comes to your work in health andmedical litigation, how much of that work
is in the cosmetic plastic surgery space?
In preparation for this conversation, Iwent back and had a look at my caseload
over the years and I could recognize thatI constantly have at any one time at least
(02:36):
one, potentially more cases of medicalnegligence litigation related to cosmetic
surgery.
And generally speaking, when those kindsof cases...
come to me, they're usually of a veryserious nature.
So it's something I see constantly.
(02:58):
I also think given the exponential rise incosmetic surgery across the board in
Australia, the amount of surgery that'sbeen performed, that I don't consider that
that's going to change anytime soon.
Ngaire, of course preserving the identityof
these cases, can you tell us some storiesthat were particularly confronting or
(03:23):
memorable for you?
Yes, I went back and had a look at some ofthe cases that I've litigated in recent
times.
The one, probably one that stands outparticularly was a woman who had a
following large weight loss, she was toldthat she was going to be given a tummy
(03:46):
tuck and
Her thighs would be fixed.
But what actually happened is that shedeveloped a catastrophic infection with
necrosis.
The skin died.
She became septic.
She nearly died.
And she was left with absolutelyhorrendous scarring throughout her torso
and her thighs.
(04:08):
And the end result left her extremelydisfigured and really
ability to have corrected surgery to fixit.
That's at a particularly serious end withwhere a person nearly died.
But then there are other kinds of caseswhich are significant too.
(04:30):
And it's, I should also hasten to say it'sa very gendered area of litigation.
Yes, men are having cosmetic surgery too,but the vast majority are female.
So therefore it's going to follow that.
that most of the litigation is going toinvolve women.
Another case that I can recall that wassignificant for the woman, although in
(04:55):
terms of the damage, it wasn't lifethreatening, but she had this woman,
relatively young woman, wanted a breastaugmentation and in the process, the
surgeon accidentally cut the ducts to hermammary gland.
So she was unable to breastfeed.
She had been, it was very important to herthat she be able to breastfeed.
(05:16):
post-surgery and she'd been assured thatshe would be able to do that.
But in fact, that couldn't happen.
So, uh, that was a very serious injury toher and particularly from a psychological
point of view.
Another case I can think of is a woman whohad some minor kind of skin condition on
(05:37):
her nose and that rather than doing abiopsy, the surgeon went ahead and did
this very elaborate.
resection and a flat graft, which reallywas kind of a very large, large surgery
when in fact if he had biopsied her nose,it would have been just found to be normal
(05:58):
tissue.
She didn't need it excised at all.
Another case of a woman who wanted to havea, she'd had breast augmentation 15 years
prior she asked, she said she wanted toover the years, gravity had...
had done its work and she wanted to have abreast lift.
(06:19):
The surgeon went ahead and did a breastlift but failed to notice that the 15 year
old implants had ruptured.
And so he just went ahead and operated onher with the ruptured breast implants in
place.
And after the surgery, one of thoseimplants made its way into her armpit.
(06:40):
So obviously she needed to have thatsurgery and have it all removed.
And the end result.
probably means that she can't haveimplants at all.
So she's not very happy with that outcome.
So that's just a kind of a small snapshotof some cases I've seen recently.
Thank you for sharing that with us,Ngaire.
(07:00):
Whilst they're confronting stories, Ithink that our listeners will gain some
value from understanding some of thethings that can go wrong and perhaps that
there's people out there that can helpthem with these experiences.
So let's talk about how the industry isregulated and what types of reforms are in
(07:23):
place in order to assist people from,well, in order to prevent these types of
injuries occurring.
The new cosmetic surgery standards wereput in place in 2023.
These standards include the need for areferral from a GP along with a general
health and psychological assessment.
What do you think of these new standards?
(07:45):
I think that there's certainly a move inthe right direction that particularly the
psychological assessment.
My understanding having spoken to cosmeticsurgeons is that what they're trying to do
is to be able to identify people with bodydysmorphia because those particular group
(08:06):
of people are very likely to seek outcosmetic surgery and they're also very
unlike unlikely
to be satisfied with the end result andwill want to come back for more and more
surgery.
And they may also be a group that islikely to litigate on the basis that
they're unhappy with the outcome.
(08:27):
So I think that that's a good move.
I think that all of improving standards,any improvement on standards and
guidelines is beneficial.
what the net effect is going to be becauseas you're aware, we have a three year
(08:47):
limitation period and the cases that arealready out there are still going to be
moving through the system because thesechanges only came into place last year.
So I think it will take some years beforewe really know how much effect that
they're going to have in terms of adverseoutcomes and litigation.
(09:09):
Ngaire, some websites use phrases like themummy makeover.
How dangerous is it to target oneparticular group and almost make it sound
like this invasive surgery is somethinglike going to a day spa?
I think it's highly problematic.
And specifically with the new guidelinesthat came in last year, those kind of
words are supposed to no longer be used.
(09:33):
So in preparation for this podcast, I didwhat I actually do on a fairly regular
basis is.
have a look at what I'm finding on theinternet in high target market areas,
places like Sydney, the Gold Coast,they're high volume areas for cosmetic
surgery.
(09:53):
And I found that there are still cosmeticsurgeons that are using the term mummy
makeover.
Strictly speaking, they are in breach ofthe guidelines if they're doing that.
They're also meant to remove any images, Imean, it used to be
very, very prevalent.
This has definitely changed in recentmonths.
(10:13):
In my view, is the use of bikini models,long-terrain models, to try and
demonstrate what the outcome was going tolook like.
And in most cases, they were extremelyunrealistic about what anybody could hope
to achieve following surgery.
So they were, they were very misleading.
By and large, most websites now haveremoved those kinds of images.
(10:37):
and I can see a tightening up of thelanguage, but there are still some
outliers.
There are still some websites wherethey're still referring to mummy
makeovers.
The ones that have actually specificallyremoved that have kind of just adjusted
their language.
They're now calling it post-pregnancysurgery.
(10:58):
So even though the colloquial language hasbeen removed, it's still clear that
they're targeting a market
that after pregnancy, after childbirth,that your body needs to be, you know,
you're potentially going to want toconsider cosmetic surgery to correct what
(11:18):
you regard as deficiencies.
So I guess, technically, it's animprovement, the remove, you know, not
using colloquial language anymore, butit's still clear who the target market is.
and those people will still be drawn tohaving surgery, I suspect.
(11:42):
Let's talk about the term surgeon.
In September 2023, as part of the widerreforms by the Medical Board of Australia
and the Australian Health PractitionerRegulation Agency, or AHPRA, this term was
restricted to mean someone who had trainedin surgery, ophthalmology, gynaecology or
obstetrics.
I think it's important to say that beforethen,
(12:02):
Some of the doctors who were callingthemselves cosmetic surgeons were not
surgeons at all.
They've not done the training to become asurgeon.
Rather, they had trained to be a GP orother skin specialist.
Ngaire, have you seen any real lifeimpacts being made with this change yet?
Uh, I would say it's difficult again,because it's still relatively new.
(12:23):
It's going to be difficult tonight untilwe get past the, you know, three year
limitation period.
I have definitely in years gone
are litigated people that call themselvescosmetic surgeons that were actually no
better qualified than a GP and that they'dbeen very poor outcomes.
So I think that restricting the usesurgeon is definitely a move in the right
(12:47):
direction.
There is a group that I think remains abit of a concern, which hasn't been
captured properly by this regulation,which they are called pediatrics surgeon
surgeons.
They are, they're a relative relativelysmall group of health professionals who've
(13:08):
undertaken training to treat specificallyfeet.
And they call themselves surgeons.
And I'm, I have some concerns about theextent of their training.
They're not, they're not, they don't fallunder what we would consider the typical
pathway for a surgeon to train.
(13:28):
under the Royal Australian College ofSurgeons or RACs.
They don't fall under RACs.
And I believe that there are some examplesof some poor outcomes.
So somehow they've slipped through the neta bit and it's going to be an area to
watch to see what happens in thatparticular space.
(13:51):
But I think by and large to restrict theterm, the use of the word surgeon
definitely a good move because generallyspeaking, I believe that once a patient
thinks that they're seeing somebody whocalls themselves a surgeon, they believe
that they've got a proper surgicaltraining behind them.
(14:12):
But previously that wasn't the case.
Virtually anybody could call themselves asurgeon.
So it remains to be seen how much, youknow, that changes litigation and safety.
But again, any regulation that...
proves that clarifies the language thatgives the public better information about
(14:32):
what to expect I think is definitely astep in the right direction.
So let's talk about serial offenders whichare surgeons or doctors who have treated a
number of women in a similar way and womenhave suffered similar types of
complications.
These serial offenders that are known topeople like you and I, do you think these
(14:53):
reforms and standards go far enough?
to stop those who are known for theirnegligence?
I don't think any of the measures havedone really gone anywhere to deal with the
serial offenders.
The guideline changes that we've just beendiscussing don't address this cohort at
all.
And I think that they are a significantproblem.
(15:15):
I have dealt with serial offenders onquite a few occasions, and I've actually
done some research in this area.
It is known statistically that once adoctor, a surgeon, if you like, has had
one complaint, two complaints, thatstatistically the likelihood of them
(15:36):
continuing to have more complaints madegoes up over time.
And it seems that in my experience, AHPRAseems to be really quite slow to act, to
deal with them, that you have to be afairly significant serial offender.
before AHPRA will actually take action andthat there will be conditions put on their
(16:00):
registration to limit the way in whichthey can work.
I think that there's another problem withserial offenders is that you and I may
know how to search AHPRA and find out whatthe conditions are on the registration of
any particular medical practitioner,especially serial offenders.
But if...
(16:21):
a member of the public, a person who wascontemplating having cosmetic surgery, put
in, typed into Google the name of adoctor.
Even if they have conditions on theirregistration, it will not come up and
Google.
It will not take them.
It will not direct them to the AHPRAwebsite.
So they have no idea if a surgeon thatthey're planning to consult has
(16:47):
restrictions on their practice or not, orhas any history.
of problematic or adverse outcomes.
It gets worse too, in that most times whenconditions are placed, they may be there
for two, possibly even three years,depends on how serious the breaches are,
(17:10):
and then they disappear.
So even if you go back to AHPRA after thattime, you won't find any history of any of
the problems.
I think that the problem of serialoffenders is not really being dealt with
properly yet by AHPRA.
I think that AHPRA is, I'm assuming theydo their best, but they're a very big
(17:31):
organization, quite unwieldy, and it takessome time, quite a lot of time to act on
notifications and complaints.
And I think that the serial offenderproblem will continue on pretty much.
unabated until they do somethingdifferently.
(17:52):
And Ngaire, why don't these newregulations stop those serial offenders,
do you think?
I'll explain.
In my view, it's because they fall intothe category of rogue doctors and that no
amount of guidelines or structure or rulesput in place are really going to govern
(18:14):
them.
In their own minds, they do what theywant.
they do quite independently of whatanybody thinks.
And I'm sure Rosy would have known thesecharacters like Dr.
Lanza, people whose behavior is reallyegregious and just so outside what is
(18:35):
considered to be acceptable conduct thatthey're not interested in guidelines.
They will just do what they want to doregardless, and that they're essentially
incompetent.
Um, I encountered people who are justfundamentally incompetent and no amount of
guidelines is ever really going to pullthem into, into line.
(18:56):
They're just a force all on their ownuntil somebody tries to stop them.
And do you think that the regulator isdoing enough to?
Well, that's what I was saying about AHPRAis slow.
AHPRA is very slow.
There's, there's been some good research.
There's even a, an Australian.
researcher Marie Bismark, if you'refamiliar with any of her work, where she
(19:19):
actually looked, she went and did aretrospective study.
She was able to access records out ofinsurance companies to look at offenders.
And it's concerning what she was able toshow that after one, if you've had one
complaint, the chances of getting a secondone go up, after the second one it goes
(19:40):
up.
And she was reporting in her research,people who had up to 10 complaints.
who were still working.
Now these aren't all necessarily cosmeticsurgeons, but they are people who are
really impervious to being told what todo.
What kind of reforms would you like to seebe put in place?
(20:02):
I believe that there are methods.
It's called search engine optimization.
It is IT tech stuff, but I believe thereare ways that where if I...
If I type in Dr.
X into Google, that it would be able tolink through to AHPRA.
(20:23):
I believe that there are technicalbarriers to that currently that could be
addressed.
They may not be terribly easy, but if youcan Google a doctor's name and you can go
straight to their website, or you can goto rate, it'll turn up rate MDs, or it'll
take you to Facebook, or it'll take you toall kinds of places, anywhere but AHPRA.
(20:44):
precisely what the technical requirementswould be for that change to be made, but
I've been told it is possible.
But yet there's not been any appetite todo it and I can't answer why.
Okay.
We work together at times to run medicalnegligence claims against offending
cosmetic surgeons.
It's a process we know well, but I know itcan be intimidating for both legal teams
(21:06):
and clients.
I wonder if you could talk through thatprocess a little.
I think it's primarily a daunting process
potential client or a patient that's beenexperienced an adverse outcome.
For you and I, I don't think it's adaunting process or difficult because we
understand this field of law.
(21:28):
Generally speaking, these clients arequite traumatized.
The nature of the injuries that they comewith, particularly for women, generally I
see in most instances psychological harmthat comes along.
with a physical injury.
It can make it difficult for a person toeven contemplate whether or not they have
(21:51):
a claim, what to do about it.
So they have to first go to a lawyer.
The process is lengthy.
As you know, it can take, it's not unusualfor it to take 18 months from the point of
connecting with a lawyer and finding outthat you've got a case until a case is
(22:11):
concluded.
In most instances, in my experience, thedefendant will deny wrongdoing, will deny
liability.
So the person has to go through quite ajourney to get to a point where they may
consider that they've achieved some kindof justice for the problem that they've
(22:33):
come with.
So it's a difficult thing for anybody tocontemplate.
And that's why it becomes very importantthat...
when people with who've been injured inthe process of having cosmetic surgery,
that they find themselves with lawyers whoare experienced in the field.
(22:54):
Because it's something that you really doneed to know the groundwork of how the law
works, how to guide somebody through theprocess, because the client needs to be
cared for, so that they don't actually,you know, receive more trauma, in my view.
So,
having lawyers that actually understandthat the process is really important and
(23:18):
that they need to be able to be informedalong the way so that they understand what
the steps are and that they have theirexpectations managed so that they are
realistic.
And if all of those things are in place,then I think that the process can have a
good outcome for a client and that canhelp.
(23:42):
get some closure for whatever's happenedto them.
How successful do you think the legalprofession is in achieving some sort of
justice at the moment?
Well, following on from my previouscomment, I think that it's quite, first of
all, the way in which the lawyers workwith the client, I think is an important
factor in how successful it is.
(24:05):
What the law is a blunt instrument.
It can't restore a person to how they werebefore.
whatever went wrong happened.
The only outcome that can be achieved is afinancial one.
And hopefully that can put a person in aposition whereby they can at least have
something corrective done, if that'swhat's required, or if they need
(24:28):
psychological treatment that they canundertake that.
But there are limits to what the legalsystem can do.
I think at the moment, it's probably,there's not a lot more that could be done
short of making it more difficult.
And I don't see any solution to this fordefendants to deny liability.
(24:51):
I think that sometimes the insistence ofdefendants to fight is unfortunate.
But lawyers who work in this space arevery familiar with that experience and
generally know how to
in the way it should, I think that peoplecan get a good outcome after something
(25:15):
that's really been a very distressingexperience.
Okay, and we'll finish on a really broadquestion, just looking to the future.
Where do you think the industry isheading?
I expect to see, if anything,notwithstanding the changes to the
guidelines, I don't see really thischanging a great deal in terms of volume.
(25:39):
mainly because it's a growing market.
It's getting bigger, not smaller.
I've seen that in the years that I've beena barrister.
It's just a burgeoning market.
There's also cosmetic medicine, with soinjectables and so forth.
That's a growing space as well.
(26:00):
And more and more what as you said in theintroduction, this used to be the, you
know, the
realm of people who had a lot of money orcelebrities, but now it's everybody.
And also, as I said, it's a genderedmarket, especially skewed to females, and
the market is getting younger and younger.
(26:22):
I think we can see social media as playinga role in that.
Influences are playing a role in that.
All of the forces are driving volume up.
It's a very lucrative area of medicine.
So that is going to attract practitionersinto it for that reason too.
So I don't actually see this as actuallygoing away at all.
(26:47):
I think it's probably going to the numbersof people are not going to change.
In fact, they may go up as more proceduresare done.
Well, look, thanks so much for your timetoday, Ngaire.
It's not a...
a most positive note to end on, but we'rehopeful that as lawyers in this field, we
can deliver some sense of perhaps helpvictims to see what happened to them in a
(27:13):
different light and reframe theirexperiences to realise that they weren't
at fault for what happened to them.
So we just want to thank you very much forcoming on the show today and we look
forward to speaking to you in the futureabout your ongoing work in this field.
You're very welcome.
Thank you.
(27:34):
I hope you got a lot out of this episodeof Law Matters.
Thank you to both Ngaire Watson and mycolleague Rosemary Listing for their time
and expertise.
I'm Catherine Henry from Catherine HenryLawyers.
And if you've been a victim of cosmeticsurgery gone wrong and you'd like to take
the matter further, please contact my teamat Catherine Henry Lawyers.
(27:55):
This podcast was produced by Pod and PenProductions.
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