While a Missouri cosmetic surgery patient may be unsatisfied with the ultimate results of a procedure, he or she will first have to prove that other professionals in this field would have produced better results. For a medical malpractice claim against a cosmetic surgeon to be viable, negligence has to be proved. If, for example, a problem such as an abnormal bone structure that could not have been anticipated becomes apparent during surgery, the surgeon has to cope with the situation in the best way possible. If chances are that other surgeons would also have been unaware of the problem prior to surgery, it may not be seen as negligent, and the result may not constitute cosmetic surgery errors.
A cosmetic surgeon may be sued only for breach of contract. Such a claim may stem from surgeries where the result is different from the agreement reached between patient and surgeon. Such a claim may arise when they agreed that a particular material would be used during augmentation surgery, and the surgeon then used a different material in error. Successful breach of contract claims will typically only be awarded monetary damages in compensation, and other damages such as pain and suffering will not form part of the judgment.
In some cases, the surgeon may promise specific results, and the court may regard such a promise as a warranty. If, for instance, the surgeon promises to change a patient’s nose to look exactly like a nose on a specific picture or photograph, and fails to produce an exact replica, a court or jury may regard it as a breach of warranty. If, however, the surgeon makes a general comparison, such as providing the best nose in Missouri, it will not be seen as a warranty that could be breached.
As is evident here, medical malpractice claims for cosmetic surgery errors may be complicated, and it may be extremely difficult to obtain the necessary evidence. Gathering evidence may include obtaining the testimonies of expert medical witnesses, and unhappy patients may want to consider seeking legal assistance. An experienced medical malpractice attorney will carefully assess the circumstances and evaluate the viability of each aspect that may make a claim viable, and suggest a way to pursue recovery of damages. More information related to medical malpractice is available on our website.
Source: medicalmalpractice.com, “Plastic Surgery Mistakes and Malpractice”, Andrew Suszek, Nov. 18, 2014