Cosmetic Surgeon Sued; Not Your Average Case! But it Exposed Important Lessons!

I came across a quite interesting medical malpractice claim regarding an out-of-state doctor and patient.  Normally, I would avoid a topic such as this but it teaches and answers a few question.  So I will not go into the facts too detailed, but will gloss over the basics and fill in the lessons. 

The case is by a female patient who consented to a breast implant surgery for one size, but the doctor gave her much larger size then she consent to.  In fact, it was noted as “ridiculous.”  So what can we learn?

First, clients commonly ask: Can you sue a doctor for ELECTIVE surgery such as cosmetic surgery?  Answer: ABSOLUTELY!  It does not have to just be an emergency surgery or one to correct a health issue.  In fact, elective surgeries such as cosmetic surgery are often easier to work with because there will be no claim by the doctor that it was an “emergency” or “life threatening” situation; both of these mitigate the liability of the doctor and make it harder to collect on them.

Second, even if you CONSENT to a surgery, and even a specific TYPE of surgery, it still doesn’t give the doctor free reign!  The best example is in the seminal case we all read first thing in law school during torts; Mohr v. Williams.  In this case, the patient went to the doctor with an earache and hearing problems.  The doctor examined both ears and thought the right ear was the problem which required surgery.  The doctor explained the surgery to the patient with the risks, benefits, and alternatives—like a good doctor ALWAYS HAS to do—and the patient consented to surgery on the right ear.  On the day of the surgery, the patient confirmed again and consented that she wanted to go through with this surgery.  So the doctor properly anesthetized her for the surgery and evaluated her right ear.  However, the right ear didn’t look so bad anymore.  He looked at the left ear, and realized it was REALLY bad and needed to be operated on—but NOT an emergency situation.  However, the doctor did not want to have to wait until the patient awoke, get her consent, and then put her under again out of fear the heavy medications would cause complications for her. 

So the doctor carried out the surgery on the patient’s left ear and, since she was under anesthesia, could not get that consent from her.  When the patient awoke and found out her left ear was operated on and not her right, she sued claiming the doctor had no consent to do this.  And the court agreed!  In fact, the doctor was liable for a battery against the patient because it was an 1) intentional act, 2) it was direct, physical contact, 3) causing harmful or offensive contact, and 4) without consent or authority of law to do so.  While this sounds hostile and just aggressive going after the patient, think about the policy implications?  What if it were her hands—if you are right-handed and you agree to surgery on your left hand so it doesn’t affect your dominate hand, but the doctor operates on your right hand, isn’t that going to cause more problems for you?  Isn’t that more of an inconvenience?  What if you have strong eyesight in your right eye and so-so in your left so you consent to a surgery there, but the doctor does your strong eye—isn’t that a problem?  What if her hearing is better in her left than her right, but the doctor performed the surgery there instead—isn’t this also a problem and inconvenience?  This case has strong intent and consent implications for doctors and other medical staff, but also shows the policy line here that doctors must recognize!

Third, RESEARCH, RESEARCH, RESEARCH!  Especially cosmetic surgery where you have AMPLE time to go over the credentials of the doctor!  This doctor has actually LOST his license in one state for “sexual misconduct” with a patient, and has been accused other times of having intercourse with a patient.  These are all red flags!  You need to research your doctor’s name online, through medical rating websites, and even asking others in the field.  If this patient did this, she clearly would have avoided this doctor.

So please—AGAIN—always make sure you check your doctor’s credentials, know EXACTLY what you are consenting to, and when in doubt if you have a claim always err on the save side and talk to a trained attorney (whether it is an emergency or elective surgery!).

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.