Any type of doctor can make a mistake that harms a patient and prompts the filing of a medical malpractice lawsuit. People sometimes forget that the protections of medical malpractice law apply to elective cosmetic surgery, but victims of errors made during these kinds of procedures are entitled to compensation just as any other victim of surgical error would be.
Lawsuits arising out of problems related to cosmetic surgery tend to fall into one of three categories:
- breach of contract
- breach of warranty, and
- medical negligence.
If cosmetic surgery produces an undesired or medically dangerous result, a patient may be able to sue the surgeon based on any or all of these theories. But each theory requires the patient to prove different elements in order to prevail in a lawsuit. Below, we'll take a closer look at each theory of liability.
Breach of Contract
A cosmetic surgery patient may be able to sue a doctor for breach of contract if the doctor fails to perform the surgery that was agreed upon.
One example of such a situation would be if the surgeon performed an augmentation using the wrong kind of material. Not only did the doctor make a mistake, but the doctor failed to perform the procedure that was agreed upon.
When a doctor and patient agree that a surgery will be performed, a contract is formed, even if nothing is written or signed. Any failure by the doctor to execute the contract as agreed is a breach of the contract.
However, a patient who sues based on a breach of contract theory may find that potential damages are limited. In most situations, only economic damages are available to remedy a breach of contract. So, damages for loss of normal life and pain and suffering may not be available to a victorious patient in a breach of contract lawsuit.
Breach of Warranty
Sometimes, in order to encourage a patient to agree to a procedure, a surgeon will promise certain results. That promise will usually be interpreted by a court as a warranty. If the doctor does not produce the promised results, the patient will likely be able to sue the doctor for breaching the warranty.
When determining whether a doctor made a promise that would be considered a warranty, always look for specificity. For example, “you will have the best nose in the world” is probably not a warranty. But, “your nose will look exactly like Kate Middleton’s nose” is probably a warranty. The difference is that the second promise is measurable. A jury could determine whether a person’s nose looks “exactly like Kate Middleton’s” but a jury would have no good way of deciding whether a person’s nose is “the best in the world.”
Most medical malpractice cases -- including most cases based on cosmetic surgery mistakes -- are based on the theory of negligence. Negligence basically means that a doctor made a mistake, one that a doctor of reasonable skill and competence wouldn't have made under the circumstances, and should have to compensate the patient for that mistake.
In order to prove negligence, a patient must demonstrate that the doctor failed to provide the quality of work that most other cosmetic surgeons would have provided under the circumstances. For example, imagine a surgeon agrees to perform a surgery to raise a person’s cheek bones. After performing most of the surgery, the surgeon realizes that due to abnormalities in the patient’s face, the desired result will be impossible. The surgeon does what can be done to salvage the procedure.
The patient will not necessarily be able to sue for negligence, even though the desired result was not achieved. If most other cosmetic surgeons would not have caught the problem until late in the procedure, and would have acted the same way to fix the problem, the doctor was not negligent. When there is no negligence, there can be no lawsuit for medical malpractice.
Thus, in order to win a medical malpractice lawsuit, a patient must first prove what level of care other cosmetic surgeons would have provided in similar circumstances, and then show how the doctor's treatment fell short of that standard in the present case. This almost always requires the testimony of a qualified expert medical witness.