Surgeon refusing to return non-refundable deposit despite rescheduling surgery twice

pbhb

I paid a £1000 non-refundable deposit on a £7900 surgery with a clinic in Harley Street. The contract term states the following:

Rescheduling 
– if you need to reschedule your surgery, the deposit is non-refundable and the following fees will apply to offset against administration and losses incurred: 

Over 8 weeks’ notice – no charge. 

8 to 4 weeks’ notice – £250 fee 

2 to 4 weeks’ notice – £1,000 fee 

less than 2 weeks notice – £2,000 fee 

Cancellations of bookings – we recommend that you consider all aspects of your procedure for at least 14 days after your Consultation with your Surgeon, should you wish to cancel your procedure, the deposit paid is non-refundable  

Over 8 weeks’ notice – £100 fee. 

8 to 4 weeks’ notice – £500 fee. 

2 to 4 weeks’ notice – 50% of total operation cost. 

less than 2 weeks’ notice – full cost of surgery retained

The issue is, I didn’t cancel or reschedule, the surgeon did.

The first I received a text message 15 days before surgery stating the surgeon had a meeting so could no longer do the surgery. They apologised and offer money off the surgery as an apology. 

I was extremely frustrated as I am freelance and have to travel, I had cleared my work schedule around the date of surgery and turned down around £21,000 worth of jobs!

I was offered a date 5 days prior or 6 days later. Unfortunately neither date worked for me as I was working 4 days prior, and then if the surgery was delayed, recovery time would have gone into a job where I needed to take a 10 hour flight, so wasn’t possible.

In the end I agree to a new surgery date which was 5 weeks after my original surgery date. I was upset and frustrated because I had turned down a month of work in September, and now I had to do the same for October, a huge hit on my bank balance.

i was amicable with the administrator who was texting me the changes.

Then, 3 weeks before the new surgery date I got another text (why don’t they ever call me?!) saying they’re really sorry but the hospital is being closed for an ‘inset day’ on my surgery date. They asked if I could move the surgery 2 days later.

Despite them thinking 2 days later was an acceptable change, it wasn’t. I had a job lined up perfectly with finishing my recovery time. A 2 day delay on the surgery would have meant cancelling a job I was being paid over £7000 for (almost the entire cost of my surgery!).

I replied and said I was disappointed and quite frankly concerned by yet another issue. I pushed that my surgery needed to be on the date we agreed. They told me it was not possible. After some thought I asked for a refund and told them I didn’t want to go ahead with the surgery, the dates didn’t work for me and I lacked trust in the surgeon. I was not willing the go under the knife by a man who can’t even organise his diary.

she responded and said she would pass my request on so refund could be processed.

i heard nothing. Then 6 days later the surgeon texted me saying he could do the original date! In another hospital… by this point I just wanted my money back and forget these cowboys existed. I googled the alternative hospital  and it rates poorly on Google. No way in hell was I having surgery there!

I contacted the administrator 2 weeks after this and asked when a refund would be processed. I was then told I can’t get a refund, as per the contract it’s non refundable. I said the contract was breached when they twice rescheduled surgery. She is trying to fight it and say it wasn’t breached as alternative dates were given.

the fact I agreed to the first date change shows I was willing to go ahead with the surgery, I wasn’t someone cancelling because I changed my mind. But the second change showed the surgeon and his staff lacked responsibility and respect for patients. Why would I let a surgeon like that near my body?

I was then told management would contact me on Friday. Well it’s Saturday and management never contacted me.

I am very close to going public with the surgeons name. So far I’ve held back from discussing this with his name attached to it and I haven’t written any online reviews yet But I’m buying my time.

What are my rights here? Can a refund really be non refundable despite it being the surgeon rescheduling twice? Is that not frustrating the contract? Should I just go ahead with small claims or should I continue pushing for an answer from management?

I have lost out on over £30,000 worth of work for nothing! Is there any claiming this back from them as well as the deposit?

the surgeon didn’t lose anything by me now wanting to cancel seeing as he supposedly couldn’t do any surgeries on either date anyway…

had they just refunded me I would have accepted it quietly, but they’re really messing me around now and people need to know what kind of surgeon this is and the staff they have.

I’ve never come across such a bunch of unprofessional people. You hear about people going to turkey for surgery but it seems Harley Street is not so different after all!

luckily for me the surgery wasn’t an emergency, it was a choice. In fact it took me years to make this choice!

Emmia

I'm sorry but I don't think surgical recovery can be guaranteed to finish on a specific day,  what if the surgery had complications? 

pbhb

Emmia said:

I'm sorry but I don't think surgical recovery can be guaranteed to finish on a specific day,  what if the surgery had complications? 

I have messages from the administrator at the hospital telling me when I would be able to travel by plane so everything was based off this

the_lunatic_is_in_my_head

Generally deposits aren’t non-refundable in consumer contracts, with the exception of small reservation fees, the ordinary position (of costs or loss of profit) applies instead if the consumer breaches the contract (which I guess a hospital could legitimately claim is £1000) so you need to demonstrate they breached the contract. 

Generally contracts need to be balanced, my understanding is if they want to charge you £1000 for the reschedule within 2-4 weeks, they should pay you £1000 if they want to reschedule in that same time.

Does the contract say where this surgery will take place and make any mention of varying where and when?

Generally the trader’s right to vary should be specific and shouldn’t expect the consumer to suffer a reduction in the benefit they receive under the contract.

Without details of which two hospitals only you can say but a court would want something with substance to show changing the hospital was of detriment to you but changing the date may have already been a breach any way.

Getting the £1000 back might be a case of sending a well worded letter before action and hoping they fold.

On the other hand, if trying to claim the £30k worth of damages for loss of earnings professional advice would probably wise in order to establish your exact position  

pbhb

the_lunatic_is_in_my_head said:

Generally contracts need to be balanced, my understanding is if they want to charge you £1000 for the reschedule within 2-4 weeks, they should pay you £1000 if they want to reschedule in that same time.

Does the contract say where this surgery will take place and make any mention of varying where and when?

Without details of which two hospitals only you can say but a court would want something with substance to show changing the hospital was of detriment to you but changing the date may have already been a breach any way.

I’ve just had a look through the wording of the contract and it doesn’t state the hospital name. But the consultation and pre-op appointments are taken at that hospital so I think then changing the hospital would be very strange.

ive checked more of the wording in regards to their deposit and they state ‘While this mayappear to be a charge for services which were not provided, this fee is necessary to reserve time in the OR and in the practice, which are done when you schedule.’ - but seeing as they rescheduled and twice and I didn’t agree to the second date, I was never booked into the OR a second time so they would never have had to pay a fee for this

injust received another email from the girl dealing with this (she’s the chaperone) who stated ‘management have lots of patients so they will be in contact at some point’ - having originally told me I would hear from them Friday, just goes to show this hospital cannot keep to a single word they say and that is why I cancelled. I lost faith and trust in them otherwise I would have sucked it up and gone with the date change 

Wonka_2

pbhb said:

I’ve never come across such a bunch of unprofessional people. You hear about people going to turkey for surgery but it seems Harley Street is not so different after all!

luckily for me the surgery wasn’t an emergency, it was a choice. In fact it took me years to make this choice!

I’m not sure in todays world that Harley Street gives any more security than Turkey - a whole load of social media based businesses using mail drop addresses/rented offices for ‘consultations’ 

Given the cost of the procedure/potential loss of earnings did you take (or were you offered) any insurance against date changes/complications etc ? As highlighted above I’m not sure an airline will take the word of an administrator on your fitness to travel. 

Whilst the excuses given by them appear flaky, to take this forward is likely to need some legal input - and an understanding that ‘reviewing’, however accurate from your perspective, may restrict your available list of surgeons for the future. 

Maybe time to dig out the legal expenses policy from your home insurance, or to talk to your credit card company if that’s how you paid ? 

pbhb

Update: after 6 weeks of being completely ignored I left a review on the surgeons Google page.

within 20 mins they finally responded to my very long email that a refund would be offered.

i accepted the refund and sent my bank details.

they then replied saying they will only send the money if the review is deleted. This seems to go against the consumer rights act (as does their entire premise of a non refundable deposit) and as much as I want my refund asap, I just don’t think I can let them get away with it?

If I went through small claims court I am very sure I would win, but is it a total ball ache?

user1977

Delete the review, get your money, repost the review…