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Posted In Publications

Proving Plastic Surgery Medical Malpractice

  1. 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.

  1. 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.

  1. 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.

Download and read the entire publication here.


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I would always suggest Sommerman, McCaffity, Quesada & Geisler

My insurance company refused to cover my injuries in an accident where they insured both parties. The other party was unquestionably liable and but did not have sufficient coverage, so damages should have been paid under my uninsured/underinsured coverage. Even though I had paid for uninsured/underinsured coverage for many years, my insurance company refused to pay. Andy Sommerman and his staff at Sommerman, McCaffity, Quesada & Geisler won the case in a jury trial even though there were three times as many attorneys and support on the opposing side. I would always suggest Sommerman, McCaffity, Quesada & Geisler if you need an attorney that is not intimidated by multi-billion dollar insurance companies.

- Roger B.
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After suffering a hit and run, I turned to Sommerman, McCaffity, Quesada & Geisler for some much-needed legal assistance. The team at Sommerman, McCaffity, Quesada & Geisler worked fastidiously for three years to resolve my complex legal matter, and kept me informed throughout the whole process. In the end, Andy Sommerman was successful in having the truck owner’s insurance pay the bills.

- SUE W.
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Our firm refers all of our personal injury cases to Sommerman, McCaffity, Quesada & Geisler. The clients we refer are treated professionally and are very pleased with the settlement proceeds they receive. Anytime I receive a call regarding a personal injury case, I refer them to Sommerman, McCaffity, Quesada & Geisler without reservation – I know they will be in good hands.

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    Jody Rodenberg Again Named as a Texas Rising Star 

    For the sixth consecutive year, our partner Jody Rodenberg is being recognized on the list of Texas … [Read More...] about Jody Rodenberg Again Named as a Texas Rising Star 

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    Four partners of the firm have been named to the list of the 500 Leading Plaintiff Consumer Lawyers … [Read More...] about Four Firm Attorneys Honored Among Nation’s Top 500 Lawyers for Plaintiffs in Litigation

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