Q: For Christmas, my husband gave me a gift certificate to receive plastic surgery as I’ve been wanting to take steps to appear more youthful now that I’m nearing 60. While I’m excited about the prospect of decreasing the wrinkles on my face, etc., I do have concerns about the potential pitfalls. If there are complications with the surgery – or I’m simply not satisfied with the results – what legal recourse do I have?
Answer:
From a legal perspective, your question presents several issues. Anytime an individual undergoes a medical (or cosmetic) procedure, there are risks. That is why healthcare is known as the practice of medicine and not the perfection of medicine. Indeed, when things go wrong, it is not always the fault of the medial professional who is handling the situation. The question of whether or not you have legal recourse if there is a surgical complication brings into focus the issues of informed consent, whether the complication you suffer is an inherent risk of the procedure and the standard of care.
Here, plastic surgery is an elective procedure and not medically necessary. In other words, you get to choose whether or not to have the cosmetic procedure. If you choose to move forward with the cosmetic surgery, you are doing so to look more youthful not because you must have the procedure done for a medical reason. Regardless, you still must be informed of the inherent risks associated with the procedure so that you can weigh the benefits and risks and make the best decision for you. Therefore, the plastic surgeon must adequately inform of you the potential benefits and risks of the procedure.
If you were adequately informed, then one must look to the nature of the complication you suffered and ask was this complication an inherent risk of the procedure. A risk is inherent if it sometimes occurs during the procedure even if the doctor did nothing wrong. Normally, you have a better case if the complication you suffer from the procedure would not be expected unless the doctor was negligent. In the medical realm, negligence is the failure by a doctor to adhere to the standard of care. In other words, the doctor must act and use the degree of care and skill that a reasonably careful, skillful and prudent doctor would in the same situation.
Finally, you may still have legal recourse even if you were adequately informed and the complication was inherent or did not result from the doctor’s negligence if the doctor failed to recognize the complication and treat the complication in timely and appropriate manner.
Here, it is best to consult with a lawyer that practices in medical malpractice law if you have suffered a complication from surgery and want to learn the merits of a potential legal case.
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