Cosmetic surgery error – what is required to make a claim?
Cosmetic and plastic surgeons, like all other healthcare professionals, owe a duty of care to their patients. In the event the cosmetic or plastic surgeon breaches their duty of care then they will be held liable in damages to the patient for the injury, loss and damage suffered.
The extent of the duty of care is defined under Section 5O of the Civil Liability Act. In essence it provides, inter-alia:
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A professional (cosmetic or plastic surgeon) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice.
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The fact that there are differing peer professional opinions widely accepted does not prevent any one or more of them being relied upon.
- Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Therefore, to successfully prosecute a claim as against a cosmetic or plastic surgeon far more needs to be established, ultimately to the satisfaction of the Court, than you were dissatisfied with the outcome of the procedure or treatment. This is particularly relevant when it comes to cosmetic or plastic surgery. The mere fact that you are disappointed with the outcome in that same did not fulfil your expectations, is not in itself evidence of any negligence on the part of the cosmetic or plastic surgeon. What needs to be proven, as set out by Section 5O above, is that the cosmetic or plastic surgeon did not act in a manner that would be widely regarded by peer professional opinion as competent professional practice.
To establish any liability in negligence on the part of the cosmetic or plastic surgeon, a peer professional (that is another cosmetic or plastic surgeon) would need to be qualified to provide a report as to whether the cosmetic or plastic surgeon who provided the professional service acted in a manner regarded as competent professional practice. If not, then assuming such evidence is accepted by the Court, breach of duty of care on the part of the cosmetic or plastic surgeon has been established.
The question then arises as to whether the breach of duty of care caused or materially contributed to any loss or damage complained of by the patient. Again, this is an evidentiary matter addressed by the medical and other evidence adduced in the proceedings. Assuming such evidence exists then the patient would be entitled to recover damages for non- economic loss (pain and suffering), further medical treatment expenses incurred as a result of the mistreatment, any economic loss, the value or cost of care that may be required by the patient as well as a contribution to the patient’s legal costs.
The prosecution of a claim as against a cosmetic or plastic surgeon, like all medical negligence claims, can be complicated and complex. However, they need not be. If you or someone you know believes they may be the victim of malpractice arising from cosmetic or plastic surgery, then contact Brydens Lawyers without delay on 1800 848 848 or at brydens.com.au for a risk free-no obligation assessment of the matter by one of our expert medical negligence lawyers. Strict time limits apply with respect to all medical negligence claims so do not delay.
At Brydens Lawyers – #WE DO cosmetic and plastic surgery medical negligence claims.