PIP breast implants
The PIP breast implant scandal saw 47,000 British women affected. All the women were fitted with silicone implants containing industrial grade chemicals never intended for medical use. In December, the French government recommended their removal due to increasing evidence they could rupture. Women in France can get the procedure for free but the NHS and private clinics in the UK will only remove implants if it is deemed clinically necessary.
What's worse is that as the company that made the silicone has gone out of business, they've been unable to get refunds on their surgery. But could that be about to change? Martin Lewis reports.
Rachel Oates had her left breast partially removed after developing cancer in 1999. In 2004 she opted for reconstructive surgery, costing nearly £6000. Her surgeon used Poly Implant Prothese - or PIP - implants. Seven years on, she discovered those same implants contained a gel not intended for the human body, but rather for use in mattresses. Rachel contacted the clinic who carried out her surgery as she desperately wanted the implants removed and replaced, but she was told they could not help her, leaving her no choice but to pay to have the procedure done again. Rachel was too late to stop the implants leaking inside her body. When doctors came to remove them, they found a hole the size of a golf ball. They'd already ruptured.
Like thousands of PIP patients, Rachel has a strong claim, but the chances of patients recovering their money have looked slim. Although the law says a supplier is responsible if it sells you a faulty product, the manufacturer in this case has gone out of business. And as the implants were approved as safe by the EU, the clinics that fitted them have argued that they did nothing wrong.
Martin Lewis looks at this as not a health issue but as a consumer rights issue, and has tried to ascertain whether the laws that apply to any purchase can bring hope. The answer is that there is a new avenue to try if they paid on their credit card. One woman in the Midlands tried to claim the entire cost of her surgery from Lloyds TSB because under Section 75 of the Consumer Credit Act 1974, if you buy something over £100 and pay for any of it on a credit card, the card company is jointly liable if anything goes wrong with the product. Last month her claim was successful and Lloyds TSB paid out £3,700.
Now this doesn't set a precedent and it needs to be understood that usually if it is has been over six years since you made your purchase you can't claim. So for women whose implants were fitted before 2006, the deadline has technically passed. But, because of the circumstances of this scandal, they still may have a case.
Consumer Lawyer Dean Dunham says, "The general rule is that you have to bring a claim within 6 years however there is an exception and that exception does apply in the case of the PIP cases- if you have suffered a personal injury you can claim within the last three years from when you had knowledge of the injury. Now we all know in the case of PIP that it only really came to public knowledge within the last two years and that means we are well within the three year period."
For Debbie Brewer, it's more clear cut. Her implants cost £4275 and, like Rachel's, they leaked. She had pain in her left breast for over a year and after a scan she was told that she has gel oozing out of her implants. She feels the implants are not fit for purpose and she should get her money back. That leak means that Debbie has a much stronger case when it comes to proving her implants were faulty. Crucially, she underwent her surgery three years ago in 2009 and she paid for it on her credit card.
Of the 47,000 British women who received PIP implants, nearly 500 are believed to have suffered a rupture. But many whose implants remain intact also want them removed in case they burst at some point in the future.
Melanie Schilling has already gone with removal and replacement surgery in January as she wasn't prepared to take the risk to her health of them rupturing. Melanie's implants may still be in one piece but as she paid more than £300 for them by credit card, does she have a case for getting her money back? Dean says that under the Supply of Goods and Services Act 1982 it says that those implants must be of satisfactory quality and as the implants are made from industrial standard silicone rather than medical, it means that they are not satisfactory quality and there is a breach of contract which means she can make a claim against the credit card company under Section 75 or the clinic.
A LLoyds TSB spokesperson said:
"One of the advantages of using a credit card to pay for goods and services is that consumers can make a Section 75 claim if there has been a misrepresentation or breach of contract, providing the cost is above £100 and less than £30,000. This can be the case whether they have purchased a holiday, electrical goods or plastic surgery among other things. Every Section 75 claim is different and each one will be reviewed on a case-by-case basis."
"We have received a small number of s75 claims from customers who have been affected by faulty PIP implants in the past few months. We always try to do the best for all of our customers and each case has been or will be assessed on their individual circumstances. We cannot disclose how many claims have resulted in a refund."
A Barclaycard spokesperson said:
Barclaycard has been in contact with Rachel to discuss the details of the case with her. Our advice to any viewers who maybe in a similar position to Rachel is get in touch with us at the earliest opportunity so we can review their case and give guidance on the claims process.
Barclaycard takes its obligations under Section 75 seriously and reviews all claims from customers on a case by case basis.
A Nationwide spokesperson said:
"The option of claiming a refund via Section 75 of the Consumer Credit Act of 1975 is open to all customers. However, we will investigate each case on its own merits taking into account the individual circumstances of each customer.
"In terms of Mrs Brewer, we have already had initial contact with her after she requested copies of her credit card statements, which we have provided. If she wishes to pursue a claim, we would be more than happy to look at the case in detail."
A Capital One spokesperson said:
1. Has Capital One received any applications for refunds from people who have paid for the fitting of PIP implants on their credit cards? If so, how many and have any people been issued with refunds to date?
We have had enquiries from three customers who have had PIP implants.
In each case we have asked the customer to talk to their GP in the first instance to seek medical advice on whether they should have their implants removed or replaced.
If they are deemed to be at risk by a medical professional, then we would consider their claim and whether we should cover their costs for corrective surgery.
As yet, none of our customers have had this advice and so we have not provided any refunds for PIP implants to date.
2. Would Capital One consider granting a refund to the specific case study outlined above?
All Section 75 claims are assessed on a case by case basis - it is difficult to make a decision in Melanie's case based on the information that has currently been provided. However, we will be contacting her to discuss her case in more detail and will do what we can to support her claim.
3. Would Capital One consider granting refunds for those people who have had PIP implants fitted and have paid on their Capital One credit card?
We assess all Section 75 claims on a case by case basis. We would ask any customer who has had PIP implants to talk to their GP in the first instance to seek medical advice on whether they should have their implants removed or replaced. If they are deemed to be at risk by a medical professional, then we would consider their claim and whether we should cover their costs for corrective surgery.
4. Would Capital One accept that anyone with the implants would have grounds for a refund for their credit card payments given the evidence that the implants are faulty, even if they have not ruptured?
The latest guidance from the NHS states "there is no clear evidence at present that patients with a PIP implant are at greater risk of harm than those with other implants". The NHS has also confirmed that they "agree with the MHRA advice that there is no specific safety concern identified which requires a recommendation of routine removal of PIP implants."
However, we assess all Section 75 claims individually and if a customer receives medical advice that they should have their PIP implants removed or replaced, regardless of whether they had ruptured, then we would consider their claim and whether we should cover their costs for corrective surgery.
We would always ask a customer to seek medical advice in the first instance though to check that corrective surgery is the right thing for them in their individual circumstances.
5. Would Capital One consider granting refunds to those people who have had the implants fitted more than six years ago, but who have only been made aware recently that the implants are not fit for purpose and could be faulty?
We assess all Section 75 claims on a case by case basis, but given that the problems with PIP implants have only come to light over the past 24 months, we do not believe that anyone will be outside the six year limitation period at this time. We would therefore consider a claim even if the original surgery was more than six years ago. However, we would always ask a customer to seek medical advice in the first instance to check that corrective surgery is the right thing for them in their individual circumstances.