Legal opinion

 

PIP breast implant victims deserve redress, writes SARAH REID

IN AUTUMN 2011 a story broke that one of Europe’s largest manufacturers of silicone breast implants had been using industrial grade silicone fillers in contravention of strict EU medical laws.

The story spread around the world. In France, where the company was based, there was a massive outcry, with the media demanding to know how such a fraud could have gone undetected. Protesters took to the streets in Spain and Italy demanding that the government do something to help these women because the manufacturers had been declared bankrupt.

What is interesting is how the Irish media – and indeed wider Irish society – responded to the issue. In contrast to our European neighbours, here the story barely took off, despite the fact that over 1,500 Irish women had received the defective implants. Even when one major Irish clinic gave undertakings to the Irish Medicines Board (IMB) that they had contacted the affected women and were later found to have lied about this, the Irish media took little notice.

What emerged was a perception that cosmetic surgery is for the rich and the vain, who deserve little sympathy.

However, last year 2,673 women were diagnosed with breast cancer in Ireland, of whom 40 per cent required a mastectomy. Furthermore, a key feature of the recent PIP scandal is that the women coming forward are not the “page 3” models of this world, they’re not even 20-something socialites.

Often they are middle aged, middle class, educated women who felt they needed the procedure. Some women needed implants as a result of breast cancer; others simply found that after breastfeeding their breasts had become misshapen. It may still be a form of vanity that drives women to undergo such procedures, but let us not tar these women as simply vain without discussing the wider context first.

In legal terms, the reason this has developed into an international scandal is because it is uncertain whether the women involved will be able to recover compensation. In Tort law a person owes a duty of care to any person who relies on their skill or services. However, where a person acts reasonably and has no reason to suspect they are falling below the standard of care required there is no claim in negligence.

In the present case, the clinics purchased a product which had been approved by the IMB on the basis that it displayed the “CE” mark (which confirms that the product complies with EU requirements). In that respect everyone in the supply chain acted in good faith and were duped by the French company which fraudulently deceived the regulatory authorities in obtaining the CE mark.

The clinics had no reason to suspect that their actions were negligent, so in legal terms the correct party to sue is the insolvent French company. However, in reality there is no money behind such a case.

While the IMB has stated that the clinics should remove the defective implants, there is no obligation to replace them. Thus, having paid for defective implants, the women affected are now being told to pay a second time if they want them replaced.

How is that an acceptable proposition?

If I sell you a car and it transpires that the brakes don’t work, how is it reasonable (or even lawful) for me to require you purchase a second car from me to replace the dangerously defective one I sold you before?

This does not concern the page 3 model who went up four cup sizes. It could be the breast cancer patient who has been to hell and back and now is faced with a toxic substance inside her which may leak. It could be the mother of three children who felt unattractive after breastfeeding and is now being told by her clinic to pay a second time for a replacement.

There may be vanity involved, but there is also an issue of human decency. The hundreds of women who cannot afford to have the implants replaced deserve to be heard rather than ignored on the basis that they’re somebody else’s problem.

Sarah Reid is a practising barrister and author. She lectures in DIT and on the HSE GP scheme

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