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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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I signed a contract with Optical Express Transplant

Resolved Question:

I signed a contract with Optical Express Transplant Surgery. Whilst the lenses have been implanted correctly my brain has not accepted them and my distance vision is poor as a result. Can I claim compensation. please.
Kathleen Lynn.
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
.
Thank you question. My name is ***** ***** I will try to help with this.
Did they warn you of this risk?
Customer: replied 2 years ago.

Yes, in the form of a video.

Customer: replied 2 years ago.

yes. in the form of a video

Expert:  Jo C. replied 2 years ago.
Is there any evidence that it was caused by their negligence?
Or was it just a normal side effect that could happen?
Customer: replied 2 years ago.

A normal side effect of what could happen

Expert:  Jo C. replied 2 years ago.
As it appears that you were were warned and accepted the risk, on what basis do you want compensation?

Are you allegeing negligence?

Why?
Customer: replied 2 years ago.

No, but I do think that they have a moral obligation to offer me monetary compensation. I Paid £4700.00 operation that wasn't fit and received incompetent treatment by their admin staff.They have offered me an ex-gratia voucher towards some glasses valued at £250.00

Expert:  Jo C. replied 2 years ago.

If they had done something differently could this have been avoided and would you now have the result that you wanted or was that an impossibility always because of this possible side effect?

Customer: replied 2 years ago.

It was always a possibility that there was a risk of it going wrong. They have offered me various options none of which will make any difference to my sight. I have taken advice from an independent consultant and he says any more treatment would be ''far too dangerous.''

Expert:  Jo C. replied 2 years ago.

to bring a claim in negligence there has to be a duty of care (which there is) and that duty needs to be breached.. It is proving the breach which is problematical .

The consequences of negligence have to also be reasonably foreseeable.

In your case the consequences of the operation (not the negligence) as side-effect it appears are known and you were made aware of those but nonetheless you went ahead with the surgery which, as it happens, didn’t work in full.

It would have to be reasonably foreseeable that although the surgery worked the psychological part to your brain did not. That is obviously reasonably foreseeable because you are given a video and the possible side effects were explained to you but you still gave your consent to the operation knowing the risk, something called “informed consent”.

If you wanted to bring a claim (and there is a claim here but it’s an extremely difficult one to bring) you would have to prove firstly that the procedure had been done negligently and/or secondly that you had not been advised of the risks.

Just because they gave you a video and asked you to watch it doesn’t necessarily mean they explain the risks to you unless they actually asked you the specific question and you sign something (which they should have asked you to do) which confirmed that you had had the risks explained to you but still wanted to go ahead regardless. If they didn’t do that then the chances of bringing a claim are increased.

With regard to any alleged negligence, to bring a successful claim you are going to need expert evidence from a specialist ophthalmic expert which confirms that in your particular case something went wrong and as a result of that, you’ve had this surgery which was in effect a waste of time. Without that expert evidence this claim will not go anywhere.

You might want to see a solicitor that deals with clinical negligence matters on a no win no fee basis and if you can find one that has experience of ophthalmic procedures, so much the better. You may struggle to find a firm that would take it no win no fee but it is certainly worth making a few telephone calls.

This is not going to be an easy claim because you openly admit that the surgery went according to plan and it was your brain link which didn’t connect. The other thing which I have already mentioned is whether they explained to you the potential risks and side effects that this may not work.

Can I clarify anything ?

Customer: replied 2 years ago.

I thought that might be the case, but thank you help. If you ever think of having this operation Don't !!!

Expert:  Jo C. replied 2 years ago.

I am glad to have helped and thank you advice.
Don’t give up just yet. It is worth a few telephone calls but I would suggest that you spoke to one of the firms that has a specialist clinical negligence department that has experience of ophthalmic claims. You might need to make quite a few phone calls before you actually find one but it is certainly worth having a trawl around.

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