Cosmetic Surgery and Medical Malpractice: Frequently Asked Questions
The following is excerpted from The Court TV Cradle-to-Grave Legal Survival Guide, an easy-to-read, in-depth explanation of the law as it affects all aspects of daily life. You can order the book, published by Little, Brown and Company, from our online store. It also is available in local bookstores, or you can call Little, Brown directly at (800) 333-3476.
WHAT IS MEDICAL MALPRACTICE?
Medical malpractice is behavior by a doctor or other healthcare provider that is negligent. A doctor's behavior is considered negligent when he or she fails to follow accepted professional standards of care, and that substandard care causes harm to the patient.That doesn't mean that a doctor (or hospital) is required to guarantee successful treatment. Generally, a doctor is required to have the knowledge and use the skill and care that any reasonably well-qualified physician would use under similar circumstance s. If, for example, it is not customary for doctors to administer a CAT scan after someone gets a slight blow to the head, a doctor or a hospital would not be liable for failing to perform that test, even though it would have revealed internal injury that resulted in brain damage.
In order to determine what the "reasonable doctor" should have done in any given case, it is usually necessary to hire medical experts to evaluate a patient's charts. In Blossom's case, it probably would not require an expert to conclude that leaving a su rgical instrument in the patient isn't up to the practices generally accepted by surgeons. The success of a case against the resident is less clear. He did misdiagnose the cause of Blossom's pain, but doctors aren't required to be right all the time. They also aren't required to guarantee that their treatments will be successful. She would have to show that, given the information the resident had at the time, he should have suspected that there was something other than normal post-operative pain. Other do ctors would have to look at the medical chart and determine whether the resident acted appropriately.
WHAT IS INFORMED CONSENT?
Except in the case of an emergency, a doctor must obtain a patient's agreement to any course of treatment. Doctors are required to tell the patient anything that would substantially affect the patient's decision. What constitutes informed consent varies f rom state to state, but doctors are generally required to explain:
- the nature of the treatment
- its foreseeable risks, side effects, and results
- reasonable alternative courses of action
Failure to obtain informed consent may make the doctor liable for damages if the treatment results in harm of which the patient should have been made aware, and the information would have changed the mind of a reasonable patient.
IS IT MALPRACTICE IF A PLASTIC SURGERY PATIENT STILL HAS WRINKLES AFTER A FACE LIFT?
Probably not. If you are disappointed with the results of a treatment, that's not an injury under medical negligence law. If, however, the physician made a promise to you that the wrinkles would disappear, he or she may be liable for breach of contract.
