More and more people are going to surgery to improve their image or erase the signs of aging. In Spain, almost 400,000 aesthetic procedures are performed each year, according to estimates by the Spanish Society of Plastic, Reconstructive and Aesthetic Surgery (SECPRE). Although they seem standardized, they are operations that carry some risk. Recently, a woman entered a coma after cosmetic surgery. There are always cases in which the expected result is not obtained or they leave physical and psychological sequels in the patient. It is then that many put themselves in the hands of a lawyer and initiate litigation with an uncertain outcome.
“I had tuberous breasts and I decided to reconstruct my chest in August 2006”, says Mamen Serrano. It was difficult for her to find a surgeon because it was a complex operation, but she found one at a prestigious clinic. “They did a computer simulation of how spectacular they would look on me,” she says. The last intervention, known as the “inverted T”, left her with a vertical scar that did not finish closing and her open wound became her worst nightmare. Overwhelmed, after five months, she went to a dermatologist who hit the nail on the head: the Betadine cure that had been prescribed for her burned the tissue. The wound closed with Vaseline in a matter of days.
Mamen’s pilgrimage was hard. “Nobody wanted to make me an expert report; there is tremendous corporatism,” she recalls. The first sentence was favorable, the judge sentenced the doctor to pay him just over 48,000 euros. A total that included 3,000 euros to compensate “the situation of concern and anguish” due to the physical appearance of the breasts. However, the Provincial Court of Madrid lowered the amount to just over 23,500 euros. “Between operations, lawyers, the 6,000 euros for the expert, treatments and a thousand stories, I had spent about 36,000.” She still suffers every time she looks in the mirror.
It is not always possible to claim for an operation or cosmetic treatment. The patient has to demonstrate the fault of the professional and the causal relationship with the damage. In addition, the doctor is not normally responsible for the result as long as he has acted with expertise and informed the patient of the risks. As Isabel Burón, partner in charge of the department of medical professional liability and personal injury at Clyde & Co, points out, the Supreme Court turned in 2010 from a harsher criterion, which blamed plastic surgeons for failures because it was satisfactory or voluntary medicine, to the current position, in which, like the rest of the doctors, they are “subject to an obligation of means, not of results”.
In other words, one thing is that the operation is poorly done and another that the final appearance is not what was expected. “Plastic surgery does not carry a guarantee of the result,” says the High Court in a 2016 ruling. As long as they do not commit to it, it is understood. And, as Burón explains, the patient “is exposed to the same risks as in any other type of surgery.” That yes, since they are voluntary operations, “the professional is especially obliged to inform him of the alternatives that he has and of the risks of the intervention to which he is going to undergo”. Failure to warn the client of any particular danger, no matter how remote, or doing it late opens the way to compensation.
This is the key to many of the matters that end up in court. That is why the lawyer who accepts the case first dives into the affected person’s medical history and informed consent. But accessing the history “is not always quick”, explains Eugenio Moure, a specialist in health law and managing partner of the firm with the same name, who also complains of cases of “manipulation of histories”. Misleading advertising, he adds, “can vitiate consent by adulterating pre-contractual information, which has to be truthful and complete.”
He knows in depth all the sides of the coin.
To go to trial it is necessary to assume the cost of an expert report, essential for both parties. “It is the expert who explains what happened and if he deviates from the correct practice, appropriate to the lex artis,” explains the person in charge of medical expert reports of the Official Judicial Expert. That is, “if protocols have been violated, reckless behaviors have been adopted or there has been abandonment or neglect”. The document guides the attorney “in the potential lines of claim.” As he explains, the consequences are not judged so much as “the management”, so “there may be unclaimable death results, because, unfortunately, complications exist and are inevitable.”
If the matter is viable, explains Moure, “we try to exhaust the out-of-court solutions, but neither the clinics nor their insurers are inclined to negotiate.” On the other hand, Burón assures from the other side that this route “is valued more and more in cases of complex situations”.
The legal battle is given both for the conviction (whether or not the praxis was correct) and for what the negligence is worth. How much are badly operated lips or sagging breasts worth? The compensation parameters are set for bodily harm in a scale approved for traffic accidents and moral damages by jurisprudential criteria, Moure points out. “We also demand the reimbursement of the cost of the treatment,” she adds. Since 2015, adds the lawyer, the compensation of the scale has been modified upwards and the circle of those entitled to claim has been expanded. Not only is the victim’s direct family member considered harmed, “but also the de facto or cohabiting partner.”
The death of Sara Gómez last January after undergoing liposculpture by a cardiovascular surgeon with courses in aesthetics has revived the debate on the regulation of this kind of intervention. Something that comes from afar. Back in 2006, the court sentenced a doctor for the injuries caused by performing a penis enlargement without being a urologist. Alberto García, lawyer for SECPRE (Spanish Society of Plastic, Reconstructive and Aesthetic Surgery), affirms that they continue to claim “a legal regulation that protects the patient, in such a way that the interventions that each specialist can carry out should be precisely delimited based on their official title and his specialty via MIR”.