Millions of plastic surgery procedures are performed in the United States every year, and the number is steadily rising. While the majority of plastic surgery procedures produce a good result, there are occasions when the plastic surgery is “botched”. A botched plastic surgery refers to a plastic surgery procedure that produces an undesirable, but likely avoidable, result.
What Are the Types of Botched Cosmetic Plastic Surgeries?
A plastic surgery procedure is generally considered to be botched if:
- The cosmetic result is dramatically different than the patient expected and/or was told to expect
- The patient suffers new medical issues that they would not have experienced without the surgery. This can range from
- Persistent and excessive nasal drainage following a rhinoplasty or “nose job”
- A foreign object being left in the patient’s body
- The patient developing an infection that either could have been avoided, or should have been detected at a follow-up appointment, that leads to sepsis (a very serious infection that can result in the malfunctioning of various organs, shock, and death)
It is important to differentiate between a procedure that has been botched, and a procedure that resulted in common and unavoidable complications. Patients experiencing common and unavoidable complications should not consider their surgeries to have been botched.
It is also important to note that the surgeon should always advise the patient of common, unavoidable complications or undesirable results before the patient consents to the surgery. This gives the patient the opportunity to decide for themselves whether the benefits of the surgery outweighs the risks.
Can a Surgeon be Held Liable for a Botched Cosmetic Surgery?
A surgeon can most definitely be held liable for botched cosmetic surgery. If the surgery you underwent resulted in complications or undesirable results that should have been completely avoidable if the surgeon was careful, then the surgeon will likely be liable.
When Does a Botched Plastic Surgery Become Medical Malpractice?
Medical malpractice occurs when a patient suffers an unnecessary injury as a result of a physician’s actions. Usually, medical malpractice comes into play when it is fairly obvious that the doctor performing surgery was not careful enough (i.e. was negligent), or intentionally ignored the patient’s wishes.
To have a successful medical malpractice claim, you will have to be able to prove the following elements:
- Duty: This element is fairly simple to prove, because a doctor/patient relationship automatically imposes on the doctor a duty to provide a certain standard of skill and care to their patients.
- Breach: It must be proven that the surgeon did not provide the degree of care or medical skill that another similarly situated doctor would have used when treating a similar patient in a similar situation.
- Causation: You need to prove that the surgery is what caused your injury or the undesired result. This will likely require another doctor to give their expert opinion.
- Damages: You will also have to prove that you really did suffer an emotional or physical injury resulting from the surgeon’s care.
There are also situations where a medical device (e.g. breast implant or an medical instrument) used in a plastic surgery procedure is the cause of the undesirable result. If this is the case, you will need to pursue legal action against the manufacturer of the medical device, instead of the doctor. The doctor cannot be blamed if they did their job well, but the medical device was defective unbeknownst to them.
Can I Demand a Refund for a Bad Plastic Surgery?
It may be possible to get a refund for plastic surgery gone wrong, but it is not very likely. Some surgeons will agree to do a revision surgery free of charge to correct an undesirable result, but that is only if the patient is comfortable letting the same doctor operate.
On very rare occasions, a surgeon may provide a refund in exchange for the patient signing a written release promising not to sue the doctor for malpractice. In a case like this, it is important to visit with an attorney first, as you may have a viable malpractice claim for which you could recover additional damages.
Is There a Time Limit on Filing a Medical Malpractice Claim?
There is a limited time during which a medical malpractice claim can be filed. This is referred to as the statute of limitations, and it varies depending on which state the surgery was done in, but is usually around two or three years.
Do I Need a Lawyer for Botched Plastic Surgery Malpractice?
A plastic surgery malpractice lawyer will be able to advise you whether you have a viable malpractice claim. Medical malpractice claims are complicated and intricate, so if you think you may have a claim, it is important to speak with a personal injury lawyer.