Cosmetic surgeries are typically elective procedures that are done to improve a person’s appearance. But as with any surgery, complications can arise, mistakes can be made, and patients can suffer significant injury. If a surgeon or other health care professional commits an error that rises to the level of medical negligence, and a patient is harmed, the mistake could form the basis of a viable medical malpractice lawsuit.
In this article we'll look at the elements of a medical malpractice case based on a cosmetic surgery error.
Plastic surgery is reconstructive surgery that is focused on repairing damage or defects related to the face and body. Cosmetic surgery is usually considered a subset of plastic surgery, one that is specifically aimed at improving a person’s appearance.
The most common types of cosmetic surgery are:
An error committed during cosmetic surgery is subject to the same kind of scrutiny as any other surgical error, in the eyes of the law. (Learn more about Surgical Errors and Medical Malpractice.)
The general elements of a medical malpractice case based on a cosmetic surgery error are:
The first element -- whether there was a doctor-patient relationship -- is typically not disputed in a medical malpractice case stemming from a surgical error.
The second element revolves around the "medical standard of care," which is typically defined as the level and kind of care that a similarly-skilled cosmetic surgeon would have provided under the same treatment circumstances.
Establishing the medical standard of care -- showing what the surgeon should have done, in other words -- typically requires expert witness testimony. Since cosmetic surgery is a highly specialized field, most plaintiffs will need to retain an expert who has experience in that field, and ideally familiarity with the same procedure that gave rise to the lawsuit. Once the standard of care is established, the expert witness needs to show precisely how the surgeon breached that standard -- what did the surgeon fail to notice or fail to do, or what missteps were taken.
Establishing the third element, injury to the patient, can be trickier than it sounds. Like all surgical procedures, cosmetic surgery carries a certain amount of risk. The surgeon has a duty to inform the patient of these known risks beforehand. If the patient is properly informed and agrees to the procedure, and one of these known complications does arise, even if the patient is harmed that does not necessarily mean that malpractice has occurred. Instead, the type and nature of the harm may have been unavoidable under the circumstances.
Keep in mind also that being unhappy with the results of cosmetic surgery is not usually considered an "injury," and may not be a reasonable basis for a medical malpractice lawsuit. Some juries may assume that the patient was simply unsatisfied with the results of the surgery even if there was actual malpractice. This kind of jury bias can be a challenge in cosmetic surgery cases.
Having said all that, common injuries stemming from cosmetic surgery errors include infection, scarring, complications from anesthesia, nerve damage, and aesthetic damage. (Note that if the patient is claiming there was a problem with the administration of anesthesia, then the patient would likely have to sue the anesthesiologist, not the cosmetic surgeon). Swelling and bruising are common side effects of cosmetic surgeries, but these are typically known risks and are not usually permanent.
Keep in mind that there are time limits for bringing a medical malpractice lawsuit. These time limits are based on a law called a statute of limitations, and every state has one on the books. Get the details on the law where you live: State-by-State Medical Malpractice Statute of Limitations.
There may also be special procedural "hoops" for you to jump through when you file a medical malpractice lawsuit. Some states require the filing of a sworn affidavit or "certificate of merit" from a qualified expert witness along with the lawsuit. If you're thinking about bringing a case to court, it's a good idea to contact a medical malpractice attorney in your area to discuss your situation and make sure your rights are protected.