- Proving Plastic Surgery Medical Malpractice
This paper discusses what is required to prove and recover damages in a medical malpractice case. It is divided into several sections progressing from the necessary elements to build a case based on plastic surgery malpractice to ensuring that your client is adequately compensated after the litigation is complete.
2. Overview of Elective Procedure Malpractice
Elective procedure malpractice is a subsection of general medical malpractice; therefore, while there are some aspects unique to malpractice arising from plastic surgery, many aspects overlap. For example, many states have codified medical malpractice liability. Table 1 summarizes the medical malpractice statutes adopted by each state. These statutes incorporate what is required to prove elective procedure malpractice.
Similarly, there are various theories under which a patient can bring a medical malpractice case, and these will be discussed in further detail in the following section. In cases involving elective procedure medical malpractice, the patient must plead and prove whatever theory (s)he chooses by a preponderance of the evidence in order to prevail.
- Building Your Case and Understanding the Causes of Action: What Constitutes Plastic Surgery Malpractice
Plaintiffs have several causes of action and theories of liability available to them against a plastic surgeon. These include negligence in the performance of surgery, failure to obtain informed consent, liability defined by consumer protection statutes, and breach of warranty.
- Negligence
Under a negligence in the performance of surgery theory, the plaintiff must plead and prove (1) that the defendant-plastic surgeon had a duty to act according to a certain standard; (2) that the defendant-plastic surgeon breached the applicable standard of care in performing the cosmetic surgery; (3) injury; and (4) a proximate causal connection between the defendant’s beach of the duty of care and the loss or injury suffered by the patient. See e.g., Cox v. Bd. of Hosp. Managers, 651 N.W.2d 356, 360 (Mich. 2002); Estate of French v. Statford House, 333 S.W.3d 546, 554 (Tenn. 2011); Nasser v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43, 48 (Ind. Ct. App. 2010); Blan v. Ali, 7 S.W.3d 741, 744 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Breland v. Rich, 69 So.3d 803, 814 (Ala. 2011); Simmons v. Covina Med. Clinic, 212 Cal. App. 3d 696, 702 (1989); Breland v. Rich, 69 So. 3d 803, 814 (Ala. 2011); Stowe v. McHugh, 699 A.2d 279, 282 (Conn. 1997).
A more detailed description of how a plaintiff can prove the defendant-plastic surgeon was negligent is given in Section IV.
- Express Warranty
In some jurisdictions, a physician and his/her patient may enter into a contractual arrangement that extends the physician’s ordinary duty of care and holds the physician liable for the result of a particular medical treatment. Scarzella v. Saxon, 436 A.2d 358, 361 (D.C. Cir. 1981) (in order to find an express warranty, the fact-finder is required to find by a preponderance of the evidence that the physician clearly and unmistakably gave a positive assurance that he would produce or avoid a particular result); Carroll v. Grabavoy, 396 N.E.2d 836, 839 (Ill. App. 1979); Haase v. Starnes, 915 S.W.2d 675, 678 (Ark. 1996) (a plaintiff’s claim for breach of warranty is included in the state’s statutory definition of “action for medical injury”). In order for such a contract to be enforceable, the warranty must be expressly made by the physician and relied upon by the patient and the warranty must be supported by considerations. Scarzella, 436 A.2d at 361.
