A plastic surgeon’s mistakes can have terrible consequences for a patient. Whether a surgery was conducted to repair a cosmetic problem introduced by a health crisis (scars from another surgery, an injury from an accident) or purely elective, a botched operation can lead to pain, disfigurement, further surgeries, and unanticipated medical bills. Someone who has been injured due to the negligence of a plastic surgeon may have the option of filing a lawsuit to recover compensation for these and other costs associated with the surgeon’s mistakes.
Building a claim of professional negligence against a plastic surgeon
One of the common causes of action for patients who are injured by doctors is professional negligence. A professional negligence claim is grounded in an assertion that the plaintiff’s injury was caused by a plastic surgeon’s failure to use reasonable care, skill, or knowledge ordinarily used under similar circumstances by similarly trained and experienced surgeons. NRS 41A.015, NRS 41A.100. A failure to use reasonable care might involve a procedural oversight during an operation, a lack of consideration for a specific health condition of the patient, or a failure to use generally accepted methods.
Nevada law provides a few specific situations where the plaintiff enjoys a presumption that the defendant doctor was negligent, largely where the plaintiff’s injury couldn’t have been caused but for the surgeon’s negligence. This exception will apply if the surgeon operates on the wrong limb, leaves objects inside the plaintiff’s body, or injures a part of the body other than the part that was operated upon. NRS 41A.100(1).
A professional negligence claim also must be accompanied by a sworn affidavit of a medical professional who concurs with the plaintiff’s medical assertions regarding the defendant’s negligence. NRS 41A.071. The professional who provides the affidavit must be in a similar line of work as the defendant, and must base his or her opinion on a detailed review of the facts of the plaintiff’s injury. The affidavit requirement fulfills important functions: it reduces the likelihood of frivolous claims while providing courts with an independent verification of the scientific or technical basis of claims. It also makes the initial process of filing a claim more expensive, because the independent expert must be compensated for the time they take to review the case and draft a response.
Defenses to professional negligence
A plastic surgeon who is sued for professional negligence will likely raise a number of defenses that the plaintiff must overcome to recover compensation.
- The surgeon’s skill was reasonable. The law’s allowance for professionals to use “reasonable” judgment when making health care decisions for their clients leaves them with wiggle room to avoid liability in close cases. It isn’t enough that other plastic surgeons wouldn’t do things the way the defendant does them. Nor is it enough that the surgeon doesn’t follow the latest and greatest practices across the board (unless the new practice is so much better for patients that continuing to use the old method is needlessly dangerous). The defendant’s actions must have had a degree of wrongfulness that takes them beyond the scope of what is “reasonable.” Proving this can require a careful analysis.
- Intervening cause. Sometimes an injury from an operation isn’t obvious until sometime afterward. Any number of things could intervene to cause an injury or make one worse. A patient who doesn’t follow post-operation instructions may have contributed to an infection.
- Assumption of risk and waivers. Plastic surgeons may ask their clients to waive certain rights or agree that they are assuming the risk that a surgery will not produce the results that the patients hope for. The enforceability of such waivers will need to be evaluated by the plaintiffs’ lawyers.
Talk to a Las Vegas attorney about your plastic surgery complications
The attorneys at Greenman Goldberg Raby Martinez help injured clients in the Las Vegas area recover compensation for their injuries. If you have been injured by a plastic surgeon’s negligence and you would like to speak to an attorney about your legal options, please contact us for a free attorney consultation. Call us at 702-388-4476 or send us a request through our site.