Medical Malpractice and Plastic Surgery

David R. “Chip” Barry, Jr.

Medical negligence cases in general are being filed far less often than they were 20 years ago. In my home state of Illinois, for example, filings since 2002 have dropped more than 40%, according to the Cook County Jury Verdict Reporter and the Daily Law Bulletin, which track filings and outcomes.1 Medical negligence actions cannot even be filed in Illinois and many other jurisdictions unless the case has been reviewed and certified as meritorious by a physician licensed in the same school of medicine as the defendant.²

Multiple studies published in the last few years indicate that fewer than 10% of the victims of malpractice ever contact a lawyer.^3,4 It is in this context that cosmetic surgery cases must be viewed. The reality is that cosmetic surgery cases are often the “last player chosen” by plaintiff’s attorneys practicing in the medical negligence area of the law.

There are many reasons for this, including the following:

1. The elements of proof

2. Jurors’ bias

3. Public perception

The Elements of Proof

In medical negligence cases, the plaintiff has the burden of proving that the defendant physician was negligent. To do this, a plaintiff must do three things:

1. Establish the standard of care in the medical community by which the defendant physician’s treatment is measured

2. Prove that the physician deviated from that standard of care

3. Prove that the resulting injury was proximately caused by the physician’s deviation

To prove that a defendant physician deviated from the standard of care, the plaintiff must present evidence that the physician failed to possess and apply that degree of skill and care that a reasonably careful physician would apply under similar circumstances. This, by its very nature, is a subjective standard, and jurors are instructed that they can only make their determination as to whether the standard has been violated based on expert testimony. In addition, the plaintiff has the burden of proving that the negligent act or acts were a cause of the damage suffered. In cosmetic surgery cases, the defense often frames the procedure as involving “as much art as science,” and the subjectivity becomes that much stronger. To prevail, the defense need only demonstrate that the procedure in question requires the exercise of professional judgment and that there are, in fact, well-qualified cosmetic surgeons who, under the same circumstance, would have acted in the same manner as the defendant. The law does not impose on physicians the burden of being right all the time or being free from complications or bad outcomes. The law only requires the physician act reasonably, and that standard is determined by what other qualified, careful physicians would do.

In short, cosmetic surgery cases are tailor-made for the defense bar. They involve lots of subjective judgment. What may appear to a qualified physician to be an excellent result may, in “the eye of the beholder” (the patient), be an unsatisfactory one. By the definitions and instructions given by the court to the jurors, that scenario does not equal malpractice, and the overwhelming likelihood is a jury will rule in favor of the defendant.

Jurors’ Bias

In my 34 years trying medical cases on behalf of both care providers and patients, I have perceived an inherent bias that jurors have against patients who undergo surgery for cosmetic reasons. The prevailing sentiment is the patient, who electively undergoes a procedure, intended to change some attribute given to the patient by God or Mother Nature, and assumes the risk if things should go awry. The blame for the unsatisfactory result lies with the patient rather than the doctor who, in point of fact, may have been less than careful during the procedure.

Medical negligence cases as a whole are difficult for plaintiffs to win (in Cook County, Illinois, the defense wins 70 to 80% of the time in all medical cases tried to verdict).5 This additional hurdle to overcome renders cosmetic cases singularly unattractive for any plaintiff.

Public Perception

Popular culture, through television shows such as Extreme Makeover, has created the impression that many cosmetic procedures are not really medical services at all, but are more akin to a manicure, pedicure, and stylish haircut. This perception makes it less likely the average juror will find against a physician on a claim that impugns his or her professional competence.

Although cosmetic surgery is but one component of plastic surgery, cosmetic surgery cases, despite the challenges they face in the legal arena, comprise the vast majority of the plastic surgery calls my firm receives from potential clients. Although we decline to accept professional responsibility in more than 95% of those potential cases, there are a few categories that generate greater interest on our part than others.

Multiple Procedures

Cases that involve multiple procedures of the same kind by one doctor on a patient raise a red flag. If a patient has undergone multiple cosmetic breast procedures within a few years or multiple facelifts in a similar time period, the advice the surgeon is giving the patient or the failure to temper unrealistic expectations may lead to closer scrutiny by the patient and, ultimately, plaintiff’s counsel for a possible lawsuit.

In 2005, a Roanoke City, Virginia, jury awarded a plaintiff a $1.5 million verdict for complications resulting from a breast reduction surgery.⁶ The plaintiff, a 60-year-old, 250-pound woman with a breast size of 46DD, agreed to undergo breast reduction at the suggestion of her plastic surgeon. The defendant, in this case the plastic surgeon, removed 1,401/1,500 grams of left breast tissue and 1,044/1,100 grams of right breast tissue. After surgery, the plaintiff experienced wound dehiscence around her right nipple and in the inframammary incisions on both breasts. The plaintiff returned to the defendant to have her breasts resutured. Shortly thereafter, the new sutures tore through her right breast, and the plaintiff experienced more wound dehiscence in her left breast. The defendant then performed skin grafting, free of charge, to close the plaintiff’s existing wounds. After skin grafting, the plaintiff developed substantial knotlike scar tissue behind both nipples. The defendant recommended that the plaintiff consult a different surgeon. The plaintiff followed the defendant’s advice, and another surgeon performed multiple corrective surgeries, including breast reconstruction with implants.

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