Legal Options Following Plastic Surgery

When plastic surgery goes wrong, can the patient sue? There are four possible claims, writes Personal Injury lawyer Mal Byrne.

Last month, I had the pleasure of attending the Dolly Parton concert at the Adelaide Entertainment Centre.  Unabashed, Parton repeated her often mentioned quotes on her multiple plastic surgeries,  “if I see something sagging, bagging, and dragging, I am going to nip it, suck it and tuck it”, and “it takes a lot of money to look this cheap”.  I was sitting about six rows from the front and it was hard to imagine that the woman that I was looking at was approaching 66.  On the other hand, the nipping, tucking and sucking was so apparent that I wondered at times whether I was looking at a sculpture rather than human flesh.  However, I am not going to get into a debate about the aesthetics of plastic surgery.  It is popular.  It is a profitable industry and it makes people feel better about themselves.

Nevertheless, plastic surgery is a medical procedure.  It is surgery.  It involves invasion of the body by scalpel, needle or liposuction tube and as such, it has risks.  It is also expensive and people are entitled to expect the outcome that they pay good money for when they make the leap.

If you have had a bad outcome from cosmetic surgery, you have four possible claims:

1. Breach of contract;

2. Medical negligence due to lack of informed consent;

3. Medical negligence due to breach of standard of care by the treating surgeon;

4. A product liability claim against the supplier/manufacturer if the problem was the failure of a device such as a breast implant.

When a patient sees a doctor, they enter into a contract.  However, the patient/doctor relationship is invested with so much trust that it is not seen in contractual terms.  If you are sick and go to a doctor, you want the doctor to help you get better, but you do not think of the arrangement as a contractual arrangement.  When a patient consults a plastic surgeon seeking improvement, the relationship has a much stronger consumer flavour than when a sick patient visits a doctor wanting to get better.  Plastic surgery is about self-improvement.  Whilst sometimes it might be about removing a scar or a mark, the patient is usually completely well but unhappy with some aspect of their appearance.  They want to look better and feel better, but not because they are sick.

If you want to have plastic surgery, you should approach the matter as if you are going to buy a car or a house.  You need to be a discerning consumer.  You need to ask questions.  You need to shop around and you need to make a sensible informed decision about which option you wish to pursue.  It is a contractual relationship.  You are paying the doctor for the right advice, competent surgical skills and the aesthetic outcome.  You need your eyes wide open and your brain on full alert.  If you walk into the arrangement starry eyed and dreaming about coming out the other side like Kim Kardashian or Brad Pitt, you might get a rude shock later on.

All forms of plastic surgery have risks.  Your treating surgeon is obliged to warn you in detail about the risks and obtain your informed consent in writing before proceeding.  When a doctor presents you with a consent form, don’t just sign it without reading the fine print.  Some of the risks of cosmetic surgery can be serious.  For example, breast implants can rupture.  All forms of general anaesthesia have risks.  Infection is a risk.

If you have cosmetic surgery and a complication has occurred about which you were not warned by the surgeon prior to the procedure and for which you did not provide informed consent, you should consult a lawyer.  However, you will need to prove that you would not have proceeded with the operation if you had been properly warned about the complication.

Informed consent only applies to complications, that is to say, events which were beyond the doctor’s control and which are just examples of bad luck such as infection or a bad reaction to the anaesthesia.  If the complication was due to a mistake by the surgeon during the procedure or any other medical negligence, you would be able to proceed regardless of whether or not informed consent took place.  There is a certain level of aesthetics to plastic surgery and negligence may not necessarily be a case of poor workmanship.  Sometimes, the surgeon may have performed the procedure competently, but not fully considered the aesthetic consequences.  For example, where liposuction is performed, the surgeon needs to consider how removing fat from one part of the body might affect another part of the body that is untreated.  There is no point in having competent liposuction say to the upper body for example if that causes the lower body to sag and stretch.  Liposuction needs to be performed evenly so that everything looks in proper proportion once it is done.

From a contractual perspective, your plastic surgeon also needs to give you realistic advice about the outcome.  Be aware of overpromising.  If the doctor has promised you a precise outcome and that has not occurred and it was not due to any negligence on behalf of the doctor, you may still have a claim for breach of contract on the basis that you have not been delivered what you were promised.  If the doctor promised that you would look like ‘x’ and you do not look like ‘x’, you should consult a lawyer.  Good plastic surgeons will sit down with you prior to the procedure and go through the pros and cons.  The cons are not necessarily limited to the risks of complications.  Sometimes, despite the best efforts of the surgeon, it may not be possible to deliver you what you want.  A good surgeon will warn you about this so you can keep your expectations realistic.  In particular, you need to ask the doctor about how long the alteration will last.  Will it last you for the rest of your life or will it need to be redone? Are there certain things that you need to do to make sure that the alteration lasts, for example, not putting on weight?

The plastic surgeon who tells it like it is rather than what you want to hear is the plastic surgeon that you should be selecting.  Do not assume that bad plastic surgery can be easily fixed.  You might end up looking much worse than when you started and you may have to live with that.  This is particularly so with breast implant surgery.  Breast implant surgery is a major procedure.  When it goes wrong, the results can be disastrous and life long so you need to be fully aware of the risks and whether the surgeon can deliver the outcome you want before you proceed.

If the complication involves the failure of a device such as a breast implant, you may have a claim against the manufacturer.  However, some devices have accepted failure rates.  It is accepted for example that a percentage of breast implants and contraceptive devices will fail.  The facts are critical.  The length of time that the device was in place before it failed will be important as will the reason that it failed.

Remember, Dolly Parton is a multi-millionaire and had the money to pay the best surgeons.  However, most people who have plastic surgery save and invest those savings in a once in a lifetime opportunity to look better.  If you were buying a new car or house, you would shop around and do your homework before you buy.  Plastic surgery is no different.

For more information or a free initial interview about your medical negligence matter contact your nearest TGB office.