Plastic surgery gone wrong - Medical Negligence

Every year thousands of people have plastic surgery, mostly seeking to correct imperfections or update their looks. Unfortunately, some things don't always go as planned and we are seeing an increasing number of problems associated with these procedures.

It is often assumed that these operations are very simple when in fact they're actually exceptionally complicated. Claims against plastic surgey gone wrong fall within the area of medical negligence.

In today's fast-moving society we often hear the phrase "Medical Negligence" being used in the same sentence as a patient's or individual's dissatisfaction with treatment provided to them by a Medical Practitioner, including plastic surgeon, which has resulted in the treatment going wrong. Far too often enquiries are made where a patient believes that they have a right to sue a Specialist for treatment that may have not been fully successful or has gone wrong. It is important to understand that advice generally given will vary depending on each individual's set of circumstances.

The law in this area has also changed over the years and more recently has been the subject of changes through government intervention. Medical Negligence cases by their very nature are difficult and require extensive research, obtaining of experts' reports and a lot of preparation. It is very rare where liability against a plastic surgeon is clear, that even in those cases where it is most medical negligence cases are vigorously defended and settlements rarely occur until such time as you are ready to run your case at Court before a Judge.

It is always important for individuals who are looking towards seeking advice or pursuing a possible claim for Medical Negligence from plastic surgey gone wrong that a detailed statement as to what has transpired is obtained. It is far too often the case that the individual, that is the patient, has little knowledge of exactly what occurred during the medical procedure as nine times out of ten they are under anaesthetic. It is for that reason that the obtaining of the hospital clinical notes is vital in the preparation of any medical negligence case.

Similarly just as important is the obtaining of the General Practitioner's or treating Specialist's records relating to the patient and whilst these can sometimes be difficult to obtain they can usually be obtained by a Subpoena. In all cases of negligence it is not enough to allege that a doctor or surgeon has done something wrong which has ultimately led to you having sustained an injury. It is necessary and in fact vital to any claim to obtain another report from a Specialist in the same medical area who can look at the facts and provide an independent opinion as to whether the conduct of the Medical Practitioner or the hospital was in fact less than the standard required. In some cases such experts' reports have to be obtained from interstate or even overseas however as a result of recent changes in the law, the test that most likely will be followed is from peers within the same area, i.e. New South Wales or similar Specialists in Australia and the tests will be applied will be that of the local standards and the local knowledge.

In the past, the test adopted in medical negligence cases was that as confirmed in the Bolam case (Bolam v Friern Hospital Management Committee (1957) 1 WLR 582) that is where the Defendant or Defendants "acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular area" – "the test is the standard of the ordinary skilled man exercising and professing to have a special skill". The test was subsequently changed by the High Court decision handed down in Rogers v Whittaker (1992) 175 CLR 479, where the patient sued a doctor due to his failure to warn her of the slight but material risk of injury to the remaining eye in surgery. The Plaintiff attended her doctor and sought advice in terms of the risks if she was to proceed with the surgery. The patient had one good eye, which was the subject of the surgery. In that particular case evidence was given by other practitioners who said that they would not have warned the patient of the slight risk of damage to the remaining eye however the High Court held that the test previously adopted did not apply in cases where there was a failure to warn as clearly the doctor's failure to warn the patient deprived her of the right to make her own decision having considered the relevant risk. Therefore the High Court held the particular Ophthalmic Surgeon negligent.

That case was a significant move from the previously adopted Bolam test in Australia. As one Judge of the High Court indicated McHugh J at 791 "to many Doctors, Judges and Lawyers, it must seem unsatisfactory that a doctor can be condemned as negligent by a jury when he or she acted in accordance with a respectable body of medical opinion" but the High Court Judge also went on to say that if there was evidence that there were other practitioners in the same area that would have provided such warnings then ultimately it's a matter that needs to be decided upon by the jury of the case and if there is reasonable evidence to support the claim then there can be a finding of negligence against that particular doctor for failing to warn.

Medical Negligence cases in Australia require the establishment of a relationship between the person aggrieved and the treatment provider that is known as a duty of care. The duty of care is said to be a legal obligation to take care for the safety of the person where it may be foreseeable that treatment or failure to treat or failure to warn or even failure to diagnose may result in injury being sustained.

The next requirement is that there needs to be evidence to establish a breach of that duty of care. In other words some action or failure to act in accordance with either local or general standards has resulted in the patient sustaining an injury. It is in this area of the breach of the duty of care that medical expert evidence is required to establish that there is a case to be answered. Before proceedings can be commenced such evidence is required. In New South Wales, the Health Care Liability Act governs Medical Negligence cases and a threshold governs the range of damages that is the amount of compensation that is awarded.

Even in circumstances where there is evidence to show that there has been a breach of the duty of care a claim may not succeed if there is no evidence to show that a loss has in fact been suffered by the patient.

The Health Care Liability Act came into effect on 5th July 2001. The Act was said to facilitate access to fair and reasonable compensation for persons who sustain severe injury. The Act defines under Section 4 that a Medical Practitioner is one Registered under the Medical Practice Act 1992. As a result a significant number of associated health care professionals are not covered by this legislation however subsequent regulations may in fact extend the definition. Under the Act, damages are constrained in a number of respects –

1. In relation to economic loss the maximum that can be claimed is $2,603.00 per week and this amount is indexed.

2. In relation to past and future care, damages under this heading are governed under Section 12 of the Act and whilst they are not specifically capped the Court has to be satisfied that there was reasonable need for the services and that the need arose directly as a result of the injury and disability sustained subsequent to the injury.

3. In terms of pain and suffering – non-economic loss – this is governed under Section 13 and a Court is required to determine a percentage of "a most extreme case". This test is similar to that used in the Motor Accident (Third Party) legislation whereby on a scale of 1 to 100 the Court has to determine a percentage in terms of how the injuries rate when compared to the most extreme case. There is a cap for general damages (non economic loss) at $350,000.00 but this too is indexed. There is a threshold in that any amount by way of a percentage given for non economic loss less than 15% means that the injured person will not receive anything for non economic loss. Any amount between 15% and 32% these amounts are also substantially reduced on a sliding scale. Any award in excess of 33% the sliding scale disappears. For example if there was a determination made that non economic loss as a proportion of the most extreme case was 15% then the equivalent amount of damages that would be recovered would be 1% of the maximum, that is $3,500.00. At 20% the percentage would be 3.5% of the maximum. In view of the threshold tests applied, unless there were reasonable prospects of recovering at least 25% of the most extreme case, which would be a modest amount of approximately $22,750.00, then it is extremely unlikely that someone would commence Court proceedings for a Medical Negligence claim.

In relation to a Medical Negligence claim these claims can be successfully litigated and favorable results obtained however it must be remembered that the injury has to be of a significant or serious nature before one contemplates such action as clearly we have to be minded of the cost implications and cost orders that could be made against an individual bringing on a claim that ultimately is unsuccessful or doesn't get over the requisite thresholds. It is for this reason that a lot of investigation needs to be carried out and the medical evidence and the clinical notes obtained well in advance of proceedings being commenced.

Our firm prides itself on its team of expert consultants including Doctors, Accountants, and Engineers etc… We have the ability to gather the necessary information, obtain expert opinions, qualify experienced Barristers to provide independent opinions and then when we have all this information together, instructions are obtained and proceedings commenced. In those circumstances when the preparation is carried out in a structured professional manner then the prospects of succeeding are greatly enhanced. Our firm currently is successful in over 98% of cases.

At Gerard Malouf & Partners we offer a service of the first consultation free to ascertain details of your claim & explain our services that only require payment if the action we undertake on your behalf is successful. Contact us today for an appointment today about your plastic surgey gone wrong claim.