Plastic and Elective Surgery Malpractice
People often look down on those who have had plastic or other elective surgeries, calling it vain or even silly. However, such patients have just as much right to competent and professional medical care as those who need life-saving surgery. In some ways, a botched plastic surgery can be arguably just as bad as a serious physical injury, in that it may leave a patient scarred or disfigured. Society places a premium on appearance, and a botched surgery can harm that characteristic of a person.Plastic Surgery Malpractice Statistics
One important fact of which patients need to be aware is that, for a plastic surgeon, board certification is optional, unlike for doctors in other disciplines. Many are misled by this, thinking that a non-board certified surgeon is automatically practicing medicine without a license, when this is not the case. However, the U.S. National Center for Biotechnology Information does show that plastic surgeons are at a “substantially high risk” of malpractice filings, though for a variety of reasons.
Analyzing data from 2004 shows that very often, it is not ‘technical faults’ that cause issues, but rather, a lack of informed consent or patients not doing appropriate due diligence. If one looks more specifically, the leading causes of malpractice filings are, in order, dissatisfaction with results (29 percent), deformity of visible scars (21 percent), and emotional distress (14 percent). None of these are life-threatening issues, but they are very real, and possess real potential to decrease the patient’s quality of life.
Another interesting point is that, in this data, only about one-third of the claims filed were found to have anything to do with the surgeon’s degree of skill. The majority primarily concerned communication lapses and/or a surgeon failing to properly obtain informed consent. While some may object, arguing that emotional distress is not something for which one can bring suit, it is important to remember that this is not the case in California. The state recognizes valid causes of action in negligence for both intentional and negligent infliction of emotional distress.How to Bring Suit
A case for malpractice in plastic surgery is similar to one brought against a doctor in another discipline. In order to have a chance to recover, you must be able to prove four things:
- The existence of a duty owed by the physician to you, the patient (this is most often established by law, as it is in California);
- The fact that the duty was breached;
- That the actions of the physician (or non-actions) were the direct cause of the breach; and
- That you suffered tangible harm due to these actions.
The existence of a doctor-patient relationship mandates that a doctor owes a duty of care that is in keeping with the prevailing standard for doctors of like age, talent and experience. A newly certified doctor may be held to a slightly different standard than a doctor who has been practicing for 40 years, but they still must be held as meeting that standard in order to avoid negligence charges.
For example, a person who goes to see a plastic surgeon to obtain an abdominoplasty (also known as a “tummy tuck”) and is later dissatisfied with the results may bring suit alleging that the doctor breached their duty of care. They may have a difficult time proving that tangible harm resulted from the doctor's actions - harm need not be physical, but it must not be ephemeral, either (in other words, it must linger for months or years, not disappear in days or weeks). However, if they can do so, they will likely recover, because the doctor's lapse in not obtaining informed consent, (or in exceeding it) may be seen as the direct cause of harm.Enlist the Knowledge of Legal Professionals
Because this type of law is so complex and rife with little details, it can be intimidating to navigate alone. The skilled San Jose medical malpractice attorneys at Corsiglia, McMahon & Allard, L.L.P. have years of experience negotiating plastic surgery malpractice cases, and we are happy to put that knowledge to work for you. Contact us today for a free consultation. We serve San Jose, the Bay Area, and the counties of Santa Clara, San Benito, San Mateo, Alameda and Monterey.