Medical Malpractice Lawsuits for Cosmetic Surgery Errors

Cosmetic (or "aesthetic") surgeries are unique in the sense that they’re usually optional medical procedures. Unlike the need to repair an injured joint or remove a cancerous tumor, most cosmetic operations are done for the sake of improving physical appearance. But like all surgical procedures, cosmetic surgery still carries some risk. And in those rare instances when a surgery results in an unexpected injury, a patient may have the right to bring a medical malpractice lawsuit.

What Are the Risks of Cosmetic Surgery?

Potential injuries and risks depend on the type of cosmetic procedure and the patient's health, but practically all cosmetic surgeries come with danger of:

• infection
• complications from anesthesia
• hematoma or blood clotting
• scarring
• drop in blood pressure
• necrosis (insufficient supply of oxygen causing the death of tissue)
• nerve damage, and
• death.

Common Cosmetic Surgeries and Their Risks

If there's a body part that a surgeon is capable of modifying, there’s probably a patient who's interested in changing it. But the cosmetic procedures listed below are more common than others.

• Liposuction: Removal of fat deposits, often around the hips, thighs, upper arms, or abdomen. Risks include fluid loss, swelling, bruises, scars, and numbing of the skin.
• Rhinoplasty: Reshaping of the nose. Specific risks include recurring nosebleeds, difficulty breathing through the nose, and numbness in and around the nose.
• Breast Augmentation or Reduction: Use of implants, often made of saline or silicone, to enlarge a woman’s breasts. Implants can break or rupture, and some women experience hardening of the breasts, which may require additional surgery.
• Tummy Tuck: The surgeon flattens the abdomen by removing extra fat and skin while also tightening the abdominal muscles. Wound healing can be extremely slow, and permanent numbness of the abdomen may occur.
• Facelift: Removal of excess fat, tightening of muscles, and adjustment of the skin around the face and neck. Complications can include injury to the nerves that control facial muscles. Skin discoloration is also possible.

When Do Cosmetic Surgeons Commit Malpractice?

Like any other health care professional, a cosmetic surgeon must provide treatment to patients that is line with the appropriate medical standard of care. This is the legal yardstick against which a health care provider's actions (or inaction) is measure. If sub-standard care leads to patient injury, medical malpractice liability may follow. (Learn more about when it's medical malpractice and when it isn't.)

What Does a Cosmetic Surgery Patient Need to Prove?

To successfully sue for medical malpractice by a cosmetic surgeon, the plaintiff typically must establish:

• the existence of a surgeon-patient relationship
• that the cosmetic surgeon did not comply with the applicable medical standard of care when treating the patient
• that the plaintiff suffered harm as a result of that failure, and
• that the plaintiff has compensable damages.

Learn more about proving medical negligence by a health care professional.

Note that the plaintiff must file his or her lawsuit within a certain period of time, under a state law called the "statute of limitations."

What If a Cosmetic Surgery Patient Just Isn't Happy With the Results?

A doctor who performs cosmetic procedures can also be liable if the patient isn’t injured, but is merely unhappy with the results of the elective surgery. These kinds of cases aren't based on personal injury law or medical malpractice, but on legal concepts like "breach of contract" or "breach of warranty."

In a breach of contract lawsuit, the patient will argue that the surgeon didn't perform the surgery as set out in the agreement between patient and doctor. For example, if a doctor uses the wrong type or size of breast implants, that could lead to a breach of contract claim.

A breach of warranty claim is similar to a breach of contract claim in that it involves the doctor not providing something as agreed upon. But unlike a breach of contract case, a breach of warranty concerns the fulfillment of a promise (as to results of the surgery, for example). The promise doesn't always need to be expressed in the contract; it can usually be implied.

Cosmetic Surgery Medical Malpractice Cases Can Be Hard to Win

Even though medical malpractice law is fundamentally the same for both elective and medically necessary operations, juries often don’t see it that way. A cosmetic surgeon can be just as reckless or negligent as a traditional doctor, but the patient's compensation ("damages") might not always reflect that.

Is There Juror Bias Against Cosmetic Surgery Patients?

Some medical malpractice lawyers think so. Juries tend to view elective cosmetic surgery malpractice differently from other kinds of medical errors—maybe thinking that, because the patient chose to have the surgery to enhance their appearance, they shouldn't be so quick to blame the surgeon if things didn't go exactly as planned. Even when the patient does win a cosmetic surgery malpractice case, juries tend to award lower damages than in regular surgical malpractice cases.

The Role of Insurance In Medical Malpractice Lawsuits

In most successful medical malpractice cases, it will be an insurance company that ultimately writes the plaintiff a check. Cosmetic surgery medical malpractice lawsuits are usually no different. But due to differences in the law in some states, it’s easier for some cosmetic surgeons to practice medicine without medical malpractice insurance. That means some cosmetic surgeons complete surgeries without any form of financial protection for the patient if a harmful mistake occurs.

If something went wrong with your cosmetic surgery procedure, you probably have more questions than this article can answer. Medical malpractice lawsuits are tough to win, and they require professional expertise. It may be time to discuss your situation with a medical malpractice attorney.