Law commissioner advocates breach of contract as solution to implant scandal
Breach of contract could be the best remedy for the PIP breast implants controversy, according to law commissioner David Hertzell.
About 40,000 women in the UK have PIP (Poly Implant Prosthèse) implants, which were filled with industrial-grade silicone gel instead of the more expensive medical-grade variety. French doctors have recommended their removal, and discussions are taking place in the UK over who is responsible, what should be done and what type of legal claim might be appropriate. The manufacturers of PIP implants are no longer in business.
Health secretary Andrew Lansley has indicated that women whose implants were inserted on the NHS will be offered free consultations and removal if required, and he has said private healthcare providers have a moral duty to offer the same. However, several private clinics deny responsibility.
Writing in NLJ, Hertzell argues a breach of contract claim “could be easier to prove and potentially offer more generous remedies than other types of claim”.
“Breast augmentation surgery is classified as a works and material contract because the service (the surgeon’s skill and the operation) is so substantial that it is in effect the substance of the contract: the goods (the implants) are ancillary.”
Hertzell points out that the goods supplied must be of “satisfactory quality”, and that safety is an important element of “quality”. “If goods are of unsatisfactory quality, the consumer is entitled, within a reasonable time, to a repair or replacement, unless this would be disproportionate…Here, claimants would be seeking the cost of replacement implants and surgery. It is irrelevant that the implants have not ruptured.”
Any litigation will also need to take into account the psychological implications of implant removal, according to expert witness and psychologist Hugh Koch, of Hugh Koch Associates.
Koch says needing or having implant removal can cause psychological distress in a large group of women, and that professional treatment should be sought if this does not resolve itself within a short period of time.
