Can You Sue a Plastic Surgeon for Malpractice?
Plastic surgery is increasingly popular as people search for ways to increase their aesthetics together with the need for reconstructive procedures following injuries and illnesses. According to an annual report from the Aesthetic Plastic Surgery National Databank, plastic surgery procedures increased by 54% year-over-year in 2021 vs. 2020, largely due to practices reopening following the initial phase of the global COVID-19 pandemic.
While you might associate higher rates of cosmetic procedures with living in cities like Los Angeles, people everywhere seek out cosmetic procedures to try to improve their appearance or maintain a more youthful appearance. Many people also undergo reconstructive surgical procedures following accidents and illnesses to correct deformities such as from burns, mastectomies following breast cancer, and others.
While cosmetic surgery has advanced and has become more popular, the increased demand also is associated with a greater incidence of surgical errors. If you have undergone plastic surgery and something went wrong, you might wonder whether you can file a lawsuit against your plastic surgeon. Here is some information about plastic surgery malpractice from a medical malpractice lawyer in Pennsylvania at the law firm of Raynes & Lawn.
Defining Plastic Surgery
The American College of Surgeons defines plastic surgery as a subspecialty of surgical practice that involves the reconstruction, repair, or replacement of defects involving the trunk, breasts, hands, facial structures, head, skin, genitalia, or musculoskeletal system. Since plastic surgery requires knowledge of a broad range of systems instead of focusing on one, it requires significant training and education beyond medical school and board certification.
Plastic surgery can help to improve structural defects, an individual’s external physical features, and deformities to facilitate better function and appearance. Plastic surgery generally falls into two categories, including cosmetic surgery and reconstructive surgery. Cosmetic surgery is performed to correct cosmetic issues, and reconstructive surgery is used to restore function and appearance following an accident, another type of surgery, or to correct a genetic defect.
In general, plastic surgery is used to alter, reconstruct, or restore a specific part of the body. Reconstructive surgery aims to restore a person’s normal appearance and functioning. Reconstructive plastic surgery is thus considered medically necessary and is often covered by medical insurance. For example, a procedure to repair a cleft palate would fall into the category of reconstructive plastic surgery.
By contrast, cosmetic plastic surgery is a voluntary or elective procedure. It is used to enhance an individual’s appearance and is not medically necessary. Because of this, cosmetic surgery is typically not covered by medical insurance.
The following types of procedures are examples of cosmetic plastic surgery:
- Face lifts
- Tummy tucks
- Breast augmentation
The following procedures are common types of reconstructive surgery:
- Cleft palate correction
- Craniofacial surgery
- Breast reconstruction following a mastectomy
- Skin grafts following serious burn injuries
What is Medical Malpractice?
Medical malpractice involves severe medical mistakes and causes a patient to suffer serious injuries or death. It can occur when a doctor, hospital, medical practice, or another healthcare professional provides care that fails to meet the standard of care a reasonable practitioner with the same education and training would have provided under the same treatment conditions, resulting in the patient’s injuries.
Here are some common types of medical malpractice that might occur:
- Anesthesia errors – Administering too little or too much anesthesia or the wrong drug
- Surgical errors – Performing the surgery incorrectly, on the wrong body part, or leaving medical instruments behind in the body
- Inadequate training – When the doctor or other medical professionals do not have the right types of training or enough experience
- Lack of informed consent – Failing to explain the risks of a procedure to the patient before the patient agrees to undergo it
- Failing to review the patient’s medical record – Failing to look at the patient’s medical record to identify drug allergies, current medications, underlying conditions, and other medical issues
These are only a few examples of medical malpractice. However, proving that a doctor was negligent and caused your injuries can be difficult. An experienced malpractice lawyer can review what happened and explain whether you might have a viable claim.
Understanding Plastic Surgery Malpractice
Medical malpractice can occur in plastic surgery and cause serious injuries, death, or disfigurement. Some patients who suffer from malpractice while undergoing plastic surgery hesitate to pursue a claim against the negligent doctor because of feeling shame about their appearance.
All surgery comes with inherent risks and the potential for complications. However, plastic surgery malpractice rises to another level and involves incompetence, negligence, or carelessness of the plastic surgeon, staff, or medical facility.
Some examples of plastic surgery malpractice might include the following:
- Performing cosmetic surgery on someone whose medical history indicates they are not an appropriate candidate
- Failing to warn a patient of the risks and obtain informed consent before performing surgery
- Negligent surgical procedures resulting in excessive scarring and disfigurement
- Performing plastic surgery on the wrong body part
- An individual’s inability to move make facial expressions because of nerve damage
- Assymetry of the body following plastic surgery
- Pulmonary embolism or blood clots caused by negligent procedures
- Medication or anesthesia errors
- Leaving surgical instruments behind in the patient’s body
- Wrong patient surgery
- Removing too much tissue during surgery
- Damaging the patient’s blood vessels or nerves
- Performing the procedure while under the influence of alcohol or drugs
Like other types of medical professionals, plastic surgeons, and their associated medical staff can commit medical malpractice. However, you’ll have to be able to prove malpractice to have a viable claim.
When Can You Sue a Plastic Surgeon for Malpractice?
It’s important to point out that not all incidents involving patients who are unhappy with the results of plastic surgery will amount to medical malpractice. Doctors can’t guarantee that you’ll achieve a particular outcome. In some cases, people will not be happy with the results of their procedures, but they also won’t have a valid basis to file a malpractice lawsuit.
If your procedure was botched because the doctor or medical staff made mistakes before, during, or after it, you might have grounds to file a lawsuit. However, you will need to be able to prove the following elements of malpractice by a preponderance of the evidence:
- You and the practitioner formed a provider-patient relationship.
- The medical provider had an expected medical standard of care they owed to you.
- The provider’s care deviated from the type of treatment a reasonable practitioner in the same specialty, a similar level of experience and education, and the same geographic area would have provided under the same treatment conditions.
- The provider’s deviation from the expected standard of care caused your injuries.
- You suffered calculable damages as a result.
The medical standard of care varies based on the field of practice and the geographic region. Because of this and the complexity of medical terminology and medical records, you must retain a medical expert to review your medical records, determine the standard of care, and figure out whether the medical provider’s treatment deviated from the expected standard of care.
Another potential complication in plastic surgery malpractice cases is that cosmetic surgery is an elective procedure. However, this does not mean that you don’t have any rights when something goes wrong. Below are a few things to consider when you are thinking about suing your plastic surgeon.
Waivers of Liability
Since cosmetic surgery is voluntary, many plastic surgeons require patients to sign waivers of liability before they will perform procedures. These documents are meant to immunize plastic surgeons against potential liability. However, even if you signed a liability waiver, that does not mean that you won’t be able to pursue a medical malpractice claim if the doctor provided incompetent treatment and injured you.
Before you meet with a medical malpractice lawyer in Pennsylvania, you should gather all documents you can. Make sure to request copies of your medical records from the hospital where your procedure was performed and from the surgeon who completed it. Gather copies of every document you signed, your medical bills, records from any corrective surgeries, and employment records showing missed work.
Statute of Limitations
Pennsylvania has a statute of limitations for medical malpractice cases. This is a law that sets a time limit on when a lawsuit can be filed and is found in 42 Pa.C.S. § 5524. Under this law, most malpractice cases must be filed no later than two years from the date of the surgery the date you first learned your injury was caused by medical negligence. Since Pennsylvania has a discovery rule, the statute of limitations will not start to run until the time when you discovered or reasonably should have discovered your injury and its cause.
While the state has a statute of repose that sets the maximum deadline for filing a malpractice lawsuit of seven years in cases in which someone could not reasonably have discovered the injury until later, the Pennsylvania Supreme Court found that the statute of repose is unconstitutional. This means there isn’t a maximum deadline for situations in which you couldn’t have discovered your injury earlier. This situation might arise if a doctor left a surgical instrument behind in your body, and you only discovered it years later. An attorney can help you understand the relevant statute of limitations in your case. However, it’s important to talk to a lawyer as soon as possible after your injury to make sure they have enough time to investigate your case instead of waiting to file.
Certificate of Merit
Before you can file a medical malpractice lawsuit, you must retain a medical expert to review your records and provide you with an opinion about the relevant standard of care and whether the doctor’s treatment fell below it and caused your injuries. Your medical malpractice lawyer will work with an expert for you to review your records. They will file a certificate of merit within 60 days of filing a lawsuit to meet the state’s requirements.
Whenever you undergo plastic surgery, you run the risk of complications. Any procedure can cause serious complications that might not be the doctor’s fault. However, in other cases, a surgeon’s negligent actions or omissions can rise to the level of medical malpractice and cause serious injuries or death. Others involved in the procedure might also be liable for malpractice, including the nurses, anesthesiologists, support staff, and the medical facility.
Common Injuries from Cosmetic Surgery Malpractice
People can suffer a variety of different injuries because of plastic surgery malpractice, including death. If the injury wasn’t discovered quickly, it might worsen until you received proper treatment to address it. Some of the common types of injuries that can occur with plastic surgery include the following:
- Hypotension caused by anesthesia errors
- Brain damage
- Throat injuries
- Punctured organ
- Internal bleeding
- Pulmonary embolism
- Kidney damage
- Organ failure
- Nerve and tissue damage
- Permanent functional loss of a limb
- Vision loss
- Hearing loss
- Loss of the ability to smell
- Body deformities
- Permannet scarring or disfigurement
Even if your surgery otherwise goes well, a post-surgical infection can be severe and potentially life-threatening. Your risk of developing an infection will be higher if you are older and in poor health. Other risk factors include your medications, environment, and the quality of the aftercare you receive. An infection that spreads can permanently damage your nerves, organs, and tissues and force you to undergo surgery to prevent it from spreading further.
How Do You Know if Your Plastic Surgeon Was Medically Negligent?
All doctors must meet the standard of care expected of competent physicians in the same practice area who operate in the same geographic region. When a plastic surgeon fails to provide competent care and injures a patient, the patient might have a viable malpractice lawsuit.
However, it can be hard for people to determine whether their plastic surgeons were medically negligent. Since patients undergo anesthesia before their surgical procedures, they might not be conscious at the time a mistake is made. Instead, you might not realize something went wrong for weeks or longer. You might not recognize that something is off until you have fully recovered from your procedure.
If you are left with a disfiguring injury, scarring, or complications following your procedure, your plastic surgeon might tell you that all of those issues are simply a risk of undergoing surgery. In many cases, a patient will accept this type of explanation at face value and blame themselves for undergoing plastic surgery instead of the doctor who provided the treatment.
If you believe you were injured because of a possible medical mistake, it’s important to consult a knowledgeable malpractice lawyer. The attorneys at Raynes & Lawn can review your medical records and give you an honest assessment of your claim’s legal merits. If you do not have a case, we will tell you. However, if your plastic surgeon appears to have committed medical malpractice and caused your injuries and other losses, we will fight for your rights to receive full compensation.
Difficulties With Plastic Surgery Malpractice Cases
Plastic surgery malpractice can be difficult to prove in court. You’ll need to hire expert witnesses who can explain to the court and jury how your surgeon violated the standard of care and caused your injuries. Your expert witnesses will also need to be able to explain complex medical terminology and reports to the court and jury in easily understandable language. The defendant will present evidence to try to show that your injuries were caused by something else or were not the result of negligence.
Because cosmetic surgery is elective, courts and juries tend to find in favor of the surgeons instead of the patients. Because of this, you must gather and present strong evidence to prove each element of your claim to overcome the jury’s predisposition. In many cases, juries in plastic surgery malpractice cases tend to return lower awards to plaintiffs when they find for them than they do in other types of medical malpractice cases.
Since people who undergo cosmetic surgery pay out-of-pocket for the procedure instead of it being covered by medical insurance, juries sometimes think the plaintiffs don’t need to receive a large award. They might think that since you had enough money to pay for the procedure, you are not hurting financially. This is another reason why it’s important to hire an experienced malpractice lawyer to try your case and overcome any potential juror biases.
Damages in a Plastic Surgery Malpractice Lawsuit
The compensation you might receive in a plastic surgery malpractice claim will depend on multiple factors. A lawyer can review your case and calculate its value to give you a rough idea of its worth.
Damages refer to the monetary amounts that you might be awarded if you win your case and can include both compensatory and punitive damages. Compensatory damages are monetary awards to compensate you for your out-of-pocket and intangible losses, including the following types:
- Past and future medical expenses to treat your injuries
- Past and future lost wages and earning capacity
- Cost of corrective surgery
- Cost of in-home care
- Physical pain and suffering
- Emotional distress/psychological trauma
- Loss of a body part
- Scarring and disfigurement
- Loss of consortium
- Loss of the enjoyment of life
Pennsylvania does not place a cap on compensatory damages. This means your potential recovery will not be limited. However, if you are awarded punitive damages, the state caps the punitive damages amount at no more than two times your compensatory damages.
Punitive damages are awarded in rare cases in which a doctor’s care was particularly outrageous. They are paid on top of compensatory damages and are meant to punish the defendant instead of compensate the victim. However, when they are awarded, they are paid to the plaintiff.
An example of when punitive damages might be awarded is wrong-site or wrong-patient surgery. For example, if a plastic surgeon performed rhinoplasty on you when you were there to undergo a tummy tuck because they confused you with a different patient, punitive damages might be awarded. This might especially be true if the rhinoplasty was botched and left you with permanently disfiguring injuries.
Should You Let a Plastic Surgeon Perform Corrective Surgery?
In some cases, a plastic surgeon will offer to perform corrective surgery to fix mistakes they made during the initial procedure. If your doctor botched your procedure, you probably shouldn’t let them perform a second surgery on you. Instead, you should speak to a medical malpractice lawyer first. You can look for a different surgeon to perform the corrective surgery, and you might be able to recover the cost of the corrective surgery through your lawsuit.
Consult a Medical Malpractice Attorney
If you think you might have been the victim of malpractice while undergoing plastic surgery, you should consult a malpractice attorney at the law firm of Raynes & Lawn. We have more than five decades of experience representing people who have been the victims of medical negligence and can help you understand your rights. Call us for a free case evaluation today at 1-800-535-1797.
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