Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

Fooling Around with Mother Nature: Plastic Surgery Malpractice Claims Rise But Remain Legally Challenging

An aging population and medical advances in cosmetic and dermatological treatments have brought an onslaught of people seeking plastic surgery to gain a more youthful and rejuvenated appearance. Television shows on the subject and celebrities with clear changes to their physical appearance have changed the public's perception of this once very private matter into a subject that is embraced and condoned as a normal part of the "anti-aging" process.

General public acceptance of plastic surgery to correct natural aging and to change body features, however, is not as freely accepted by juries asked to award damages for surgeries gone awry. Having handled these cases over the years, there are common complaints from patients, some which are legitimate and some which represent unreasonable expectations or perceptions of physical appearance or beauty.

The most frequent complaints of failed plastic surgeries we encounter involve breast enlargement and aesthetic facial surgeries of the eyes, lips and chin. We have seen a variety of less than desirable post-surgical outcomes including uneven breast size, irregular placement of implants, misplaced areola, development of severe and oftentimes painful scarring around the edges of the breast, nerve and facial numbness and palsy, eyes that are of different sizes, an eye which doesn't blink in synchronization or at all, and lips and chins that are too large or too small or that don't function normally. Some of the problems we have seen are very serious and the agony and suffering arising from failed surgeries and bad outcomes is extraordinary.

There are significant difficulties presented by plastic surgery malpractice claims. The first hurdle is overcoming the informed consent given by the patient before the surgery was performed. While typically written, some informed consent is verbally obtained. In those cases where informed consent is obtained in writing, the consent form typically describes a plethora of complications that may occur even with the best of care, including death and "failure to achieve the desired result." The latter proviso is a catchall "complication" that can be interpreted or misinterpreted to include almost anything untoward that might go wrong with the surgery, including the fact that the patient just doesn't like how it looks. And of course there's the argument that if the patient was willing to risk death as a possible complication, they should not be heard to complain of any complication falling short of death. The latter argument is rather ridiculous although it is used with some frequency albeit unsuccessfully.The second problem arises when the person making claim has undergone multiple plastic surgeries in the past. Some people have an insatiable appetite for beauty, which proverbially, is in the eyes of the beholder. In some cases, a person complains about a feature they feel is clearly noticeable and unattractive while others may not even recognize the feature or may find it adds to the person's character and thus to their attractiveness.Indeed, some people suffer from self-perception disorders and are never satisfied with the way they look even after extraordinary effort is undertaken to improve their appearance. When a person has undergone multiple aesthetic plastic surgeries, they will be portrayed by defense counsel as someone with self-esteem problems and who demands perfection under circumstances where perfection is undefined and cannot be guaranteed. Thus, their "desired result cannot be achieved." This defense tactic is very effective, particularly in front of a cynical jury who may already be of the opinion that if "one messes with what mother nature giveth, one deserves all that cometh."When evaluating any plastic surgery malpractice claim, we consider the following issues, none of which on there own is typically compelling but which afford insight as to the likelihood that the person's claim will succeed through litigation:The content of any informed consent form and the extent of the informed consent;

The severity of the complication and whether it is a notorious risk of the procedure;

The patient's past history of prior cosmetic surgeries/procedures;

The patient's mental health history and history of obsessive/compulsive disorders;

The patient's ability to provide a thorough and accurate medical history;

The patient's employment in the medical profession or a related field;

The patient's desire to undergo additional corrective surgeries to the affected area;

The patient's general perception of themselves, their physicians and other professionals;

The patient's secondary gain motives to bring legal actions;

The patient's compliance with reasonable medical advice and directives;

The extent to which the patient has received diametrically conflicting medical opinions;

The extent to which the patient has seen a large number of medical providers in the same field;

The extent to which the patient suffers from managed or unmanaged pain syndromes;

The extent to which the patient has a longstanding history of taking narcotic pain medications;

The extent to which a patient has a history of drug or alcohol abuse;

The extent to which family members have become involved in medical/legal decision-making;

The patient's employment and the past, presented and anticipated future economic losses;

The patient's past, present and anticipated future noneconomic loss.Plastic surgery malpractice is occurring at an increasing rate but malpractice cases remain difficult to handle. Patients are encouraged to ask questions before and after the procedure and to take notes of all encounters with doctors. Photographs should be taken by the patient before and after the procedure with focus on the problem. Patients should abstain from accusing the surgeon of any wrongdoing and should stay calm and collected until they have a full understanding and can make reasonably informed and rational decisions about additional treatment and/or need for legal consultation. Patients should not rush to have additional "corrective" surgeries and should understand that additional surgeries can make cosmetic problems worse and not better. Patients should educate themselves on all risks of the contemplated procedures before they have them, and should pay particular attention to the concepts of "scar tissue formation," "wound dehiscence" and infection, as these are the most troubling and frequently seen problems our prospective clients have encountered.

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