Botched Plastic Surgery: Is Your Doctor Liable for Malpractice?
Plastic surgery can be medically necessary or elective, but it shouldn’t leave you with an unsightly result
Plastic surgery or cosmetic surgery should be performed in a hospital by a licensed and board-certified surgeon. But some elective procedures are performed by uninsured, unlicensed practitioners and sometimes they leave a patient with unintended results.
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There are risks inherent in any surgical procedure. Some surgeries are performed to treat a medical condition, others are because of an accident or injury, and some are chosen by the patient but aren’t medically necessary.
You might consider cosmetic and plastic surgery as optional or “elective” surgeries. While each of these is for the purpose of improving the patient’s body, not all elective surgeries are the same.
Difference between plastic surgery and cosmetic surgery
Plastic surgery is for the purpose of reconstructing a face or body defect. This can be from a birth defect, trauma, burn, or disease. Plastic surgery is a reconstructive procedure because it corrects a part of the body that already exists, but warrants improvement. (source)
Common plastic surgery procedures include:
- Breast reconstruction
- Scar revision
- Burn repair
- Lower extremity reconstruction
- Hand surgery
- Congenital cleft palate repair
- Congenital extremity defect repair
Cosmetic surgery is a separate specialty, and doctors who perform this type of procedure are trained differently. The purpose of cosmetic surgery is to enhance a patient’s appearance by improving aesthetic appeal, symmetry, and proportion.
Only a plastic surgeon can perform plastic surgery, but doctors from a variety of specialties can perform cosmetic surgery, depending on the part of the body and procedure.
Cosmetic surgery can include:
- Body contouring (includes a tummy tuck, liposuction, gynecomastia treatment, buttock lift)
- Breast surgery (includes augmentation, lift, or reduction)
- Face surgery (includes rhinoplasty, chin or cheek enhancement, facelift, eye lift, neck lift, or brow lift, lip augmentation, forehead lift, chemical peel, plumping or collagen injections)
- Skin rejuvenation (includes laser resurfacing, Botox, and filler treatments)
Cosmetic or plastic surgery isn’t just for movie stars and supermodels. Some people wish to correct a body condition that bothers them or makes them feel self-conscious, and others require plastic or cosmetic surgery after an accident, medical treatment, or another injury that leaves them scarred or disfigured.
Botched plastic surgery (aka surgery gone wrong)
Plastic surgery could result in your appearance changing in a way you didn’t expect—or, as it’s commonly called, a “botched” plastic surgery.
A botched plastic surgery is a procedure that has an undesirable outcome.
A surgery is “botched” if:
- The result is drastically different from what the patient was told they could expect, or
- The patient has new medical issues that they would not have if they hadn’t had the surgery.
These new medical issues could include:
- Persistent or excessive nasal drainage after rhinoplasty
- Infection, or an infection that leads to sepsis
- A foreign object left in the body
Any surgical procedure has a risk of common and unavoidable complications. If your surgery resulted in complications or didn’t meet your expectations, it’s important to know whether the result is common and an unavoidable complication, or if it was botched.
Your surgeon should advise you ahead of time of common and unavoidable complications that can occur. When the patient consents to surgery, they’re accepting those common and unavoidable risks.
Is a botched plastic surgery medical malpractice?
Every medical professional is required to meet a specific standard of care, which is the reasonable approach, practice, or procedure for a particular medical situation.
Reasonableness is determined by what’s common and accepted in the local medical community. That means the standard of care might be different depending on where the treatment was provided. A physician or other medical professional has breached the standard of care if they failed to provide treatment consistent with the local standard.
In order for a claim to be medical malpractice, it must meet the elements of negligence for a personal injury lawsuit as it relates to botched plastic surgery:
- The physician had a duty to the patient.
- The physician breached their duty.
- Breach of that duty was the cause of the plaintiff’s injury.
- The defendant should have foreseen that the patient would be harmed by their action or inaction.
- The injury resulted in actual damages (cost of medical treatment, lost wages, pain and suffering, etc.).
Usually, a medical malpractice case for a botched plastic surgery is because of a procedural error (in other words, the surgeon performed the surgery incorrectly) or because the surgeon was inexperienced or poorly skilled.
Enjuris tip:Make sure your cosmetic surgeon is qualified, experienced, and board-certified. Cosmetic surgery is often not covered by insurance, which means patients pay cash immediately and the surgeon doesn’t need to be a provider for an insurance company. Make sure your doctor is qualified and licensed.
Common injuries in a plastic or cosmetic surgery malpractice lawsuit
A plastic or cosmetic surgery could result in:
- Permanent scarring
- Reactions to anesthesia
- Excessive bleeding
- Drooping of the surgical site
- Skin discoloration or irregularities
Signs that you might be a victim of cosmetic surgery malpractice
These circumstances make a convincing claim for medical malpractice:
- The person who performed cosmetic surgery is not a board-certified plastic surgeon.
- The anesthesia was administered by a nurse anesthetist, rather than an anesthesiologist.
- A lengthy procedure was performed in a private office outside a hospital and without the ability to immediately treat serious complications.
- The surgeon did not review the patient’s full medical history.
- The surgeon exceeded the scope of the patient’s consent.
- The surgeon operated on the incorrect body part.
Jury bias in a botched plastic surgery lawsuit
When a physician is sued for botched plastic surgery, there are a few roadblocks that might prevent a plaintiff from recovering damages.
A jury is supposed to determine a lawsuit based on facts, evidence, and proof. But that’s not what always happens.
Jurors react based on human nature just like anyone else. After all, a juror is just a regular person who was randomly selected to carry out the responsibility of deciding your fate.
Sometimes, a jury in a cosmetic surgery lawsuit will “punish” a malpractice victim. They might have opinions that the patient doesn’t deserve a favorable verdict because they are overweight, vain, or wealthy enough to have elective surgery. Especially if the jury feels that the surgery wasn’t necessary, they might not think that a bad result warrants a financial windfall.
On the other hand, the same jury who would not award damages to a patient who had a botched nose job might be very willing to award damages to a patient who had reconstructive breast surgery after a mastectomy from a cancer diagnosis.
What if your doctor is uninsured?
This can be a big problem for botched plastic surgery cases. When you undergo a non-elective (traditional) surgery that is recommended because of a medical condition or diagnosis, it’s likely that both the doctor and the procedure are covered by some insurance.
But when you elect for a surgery that’s not medically necessary, your insurance might not cover it and your doctor might not even have malpractice insurance.
Facing factsThere are almost 7,000 doctors in Florida who lack malpractice insurance. Those same doctors are 44% more likely to have been disciplined. One in 5 board-certified plastic surgeons in Florida don’t have malpractice insurance. Further, these figures don’t include doctors who perform plastic surgery without certification, which is legal in Florida.
Take this real-life example:
Dr. Jose Aquino performed a tummy tuck on Janira Gonzalez in Florida, but the incision didn’t heal properly. Gonzalez returned to Dr. Aquino 8 times because of skin around the incision that reddened and peeled apart.
Within 2 months after the surgery, Gonzalez’s incision was gaping in 4 places, 1 of which was 3 inches tall and 5 inches wide.
Shortly thereafter, she spiked a fever and had trouble breathing. She was diagnosed with an infection and required hospital admission and surgery to cut and drain the infection.
As a result, Gonzalez was unable to work for a month and faces extensive hospital bills in addition to the bills for the original tummy tuck.
Gonzalez still feels pain from the incision and the lengthy scar on her abdomen can be visible, even through clothes. She filed a complaint to the Florida Department of Health about Dr. Aquino, and the complaint is still pending.
Gonzalez has not yet filed a personal injury lawsuit against Dr. Aquino. But even if she does, that doesn’t mean the doctor will pay her damages.
Here’s another example:
Rick Martinez underwent liposuction performed by Dr. Amaryllis Pascual in Florida. During the procedure, Dr. Pascual perforated Martinez’s small bowel in multiple places.
Martinez sued Dr. Pascual and won $1 million in damages. But Dr. Pascual filed for bankruptcy, so Martinez only received $15,754 of the million-dollar judgment.
In other words, while a physician does have a legal obligation to satisfy a medical malpractice claim, bankruptcy can erase it. Then, the negligent doctor can quickly earn money again by continuing to practice. (source)
Botched plastic surgery because of a defective implant
Some plastic or cosmetic surgeries involve implanting something from outside the body — like breast augmentation implants or other devices — and it’s the item that causes complications, not the doctor. If that happens, the liable party could be the implant or device manufacturer.
What to do after a botched plastic surgery
First, make sure you get the medical treatment you need for whatever injury or condition has developed as a result of the surgery. Find a qualified, experienced doctor who can diagnose and treat the problem.
Second, get a second opinion about whether the injury is the result of botched plastic surgery and if it might constitute medical malpractice.
Even the most careful, competent doctor can perform a procedure that results in an infection or other unexpected outcome. Just because you suffer a side-effect or reaction doesn’t automatically mean there was malpractice or that the doctor could have done anything differently or better.
To determine if negligence played a role in your case, consult a medical malpractice lawyer. A lawyer who specializes in this area of law can evaluate the evidence, gather medical records, speak with experts and determine how to proceed with your claim.
Need to find an attorney? The Enjuris law firm directory is a free resource for finding a medical malpractice lawyer near you.
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