Challenges of Winning a Cosmetic Surgery Malpractice Lawsuit
Medical malpractice can be caused by a number of different kinds of acts (or failures to act) on the part of a health care professional, but the main cause of medical malpractice will always boil down to medical negligence. With cosmetic surgery cases, you may not always be happy with the results, but that doesn’t always add up to medical negligence. Read on to learn more about challenges in bringing a medical malpractice case after cosmetic surgery.
What is Cosmetic Surgery?
Cosmetic surgery is a type of plastic surgery, which is essentially reconstructive surgery on the skin or flesh. A good example of plastic surgery is surgery to repair serious burns. Many types of plastic surgery are required to repair some damage to the patient. In contrast, cosmetic surgery is elective surgery, often chosen as a way to enhance the body image. Breast reduction or augmentation or facelifts are examples of cosmetic surgery. Because cosmetic surgery is elective, health insurers rarely pay for it. That means that most people who want cosmetic surgery have to pay for it themselves.
Malpractice Issues in Cosmetic Surgery
Most types of cosmetic surgery medical malpractice involve surgical error, i.e. the cosmetic surgeon botched the surgery. Other problems with cosmetic surgery that can lead to a malpractice claim are post-operative infections, negligent injection of drugs used for cosmetic purposes like Botox, and complications from anesthesia .
Inexperienced or Unskilled Surgeons
The surgeon’s lack of experience or certification is another issue that sometimes comes up in cosmetic surgery malpractice cases. Because cosmetic surgery can be such a moneymaker for the surgeons (i.e. immediate payment and no health insurance paperwork to file), it can attract unqualified surgeons .
If you are considering cosmetic surgery, you should only use a qualified, experienced, board-certified cosmetic surgeon. That does not guarantee a successful outcome with no mistakes, but it at least ensures that you will be operated on by a good, qualified surgeon with a reasonably good track record.
Challenges Winning These Types of Lawsuits
The biggest problem in winning cosmetic surgery malpractice cases comes from the very feature of cosmetic surgery that sets it apart from regular surgery — it is elective, and, by definition, unnecessary.
You Didn’t Need Surgery
Juries tend to think that, because the patient might have wanted the surgery to enhance his/her image, the patient should not be so quick to blame the surgeon if the surgery went wrong. For this reason, juries tend to give the cosmetic surgeon the benefit of the doubt.
Even when the patient does win the case, juries tend to award lower damages than in regular surgical malpractice cases. Some lawyers feel that the best explanation for these lower jury awards is that juries just are not receptive to the patient’s complaints because they feel that it was the plaintiff’s choice to have the surgery and that therefore the plaintiff should somehow be partially at fault for the damages.
In essence, the juries are punishing the malpractice victim for being vain, overweight, too lazy to work out, or even for having so much money that they can afford to spend it on unnecessary surgery. This does not sound like a very logical approach, but it is human nature. Jurors might think that they (the jurors ) don’t have the money to get cosmetic surgery, or if they did have the money, they wouldn’t spend it on cosmetic surgery, so why should they be bothered about someone who does have the money?
Other jurors have a problem with cosmetic surgery malpractice claims because they might have had successful cosmetic surgery themselves. Thus, they blame the patient for either choosing an unqualified cosmetic surgeon or for not understanding that all surgery has some risk and for being overly demanding of perfection from their surgeon.
You might think that, if these jurors have such significant problems with cosmetic surgery claims, shouldn’t the judge remove them from the jury for being biased? While all litigants are entitled to an unbiased jury, what often happens is that the prospective jurors tell the judge that they believe that they can judge the case fairly because they truly think that. It is only after they start hearing the evidence that their prejudices come into play.
Legal Analysis vs. Human Nature
So you can see that the problems with cosmetic surgery malpractices cases do not always stem from any legal difficulties in proving negligence. They come from the nature of the medical procedure itself and its negative effect on jurors hearing the case. Unfortunately, cosmetic surgery cases are one area of the law where juries are simply not as sympathetic to plaintiffs as perhaps they should be.