Women suing over alleged botched cosmetic procedures in 'difficult position' after insurance body for doctors ends its involvement, judge says
Published 04/06/2014 | 17:41
AN insurance body for doctors, the Medical Defence Union (MDU), has decided to end its involvement in two legal actions against a cosmetic surgeon who died bankrupt, the High Court heard.
As a result, it has left two women suing over alleged botched cosmetic procedures in a more difficult position, a judge has said.
The position of Mary Jo Moloney, who sued over an alleged botched breast uplift, is particularly difficult because that procedure was carried out by former MDU member Samy Malhas in November 2003 at the Advanced Cosmetic Surgery Ltd clinic in Mount Merrion when that company (now in liquidation) was not insured, Mr Justice George Birmingham said.
Ms Moloney claims she was left with long-term problems involving scarring, asymmetry, nipple mal-positioning and hypersensitivity, and distortion of breast shape. She also raised issues about the validity of consent for the procedure.
All claims had been denied by the clinic and by Mr Malhas before his death in 2013.
In the second case, Deirdre Shortt claims she was left "a nasal cripple" following a rhinoplasty procedure carried out by Mr Malhas at the premises of Cosmedico Clinic Dublin Ltd in August 2007.
In his defence to her claim, Mr Malhas accepted she developed a small dent on the left side of the nose but denied all other claims and pleaded contributory negligence by Ms Shortt in failing to allow the nose to heal.
The judge noted Ms Shortt's prospects for recovery of damages, should she win her case, are "not as bleak" because Cosmedic remains in existence and has insurance, "albeit subect to a not insignificant policy excess".
Mr Malhas was a member of the MDU when carrying out both procedures and sought its assistance in dealing with the claims. Such assistance is discretionary but the MDU offered it in both cases and was represented by Arthur Cox solicitors.
In January 2013, Mr Malhas died in Germany where he was operating as a sole practitioner in a clinic.
He was declared a bankrupt before his death and a solicitor said there was no estate from which to take instructions, the judge noted.
The MDU decided it would not provide further assistance in relation to Mr Malhas' defence of the two cases and told Arthur Cox to ceased representing the body. Both women plaintiffs opposed those applications and Cosmedico supported Ms Shortt in her opposition.
Mr Justice Birmingham stressed, when dealing with applications by Arthur Cox to come "off record" in the case, the courts have no function to decide whether or not an insurer is entitled to repudiate liaability.
Forcing Arthur Cox to remain in the case against its wishes, and those of the MDU, would not change or improve the women's position in any way, he said.
He considered the real issue was whether conditions should be attached to any order permitting the solicitors come off record.
In Ms Moloney's case, Advanced Cosmetic Surgery is in liquidation and was never covered by insurance, the judge noted.
A result that allowed the MDU take advantage of the death of its former member as a bankrupt and left Ms Moloney standing alone facing major bills "would be harsh".
As a condition of allowing Arthur Cox come off record, the applicant should pay her costs of the motion and for outlay incurred by her, he directed.
As a condition of coming off record in Ms Shortt's case, the costs of the motions should be paid to Ms Shortt and Cosmedico, the judge also ordered. He has adjourned the matter to allow the sides consider his judgment.