Tiffany Laslett discusses when things go wrong…
Negligence
The number of women and men undergoing cosmetic and aesthetic procedures has dramatically increased in recent years.
In July 2016 the International Society of Aesthetic Plastic Surgery (ISAPS) released the results of their global survey of surgical and non-surgical cosmetic and aesthetic procedures performed in 2015, compiled from responses to questionnaires sent to approximately 35,000 plastic surgeons around the world. The most popular surgical procedures were found to be breast augmentation, with over 1.4 million procedures reported, followed by liposuction, with over 1.3 million procedures performed.
The most popular non-surgical procedures were Botox, with over 4.6 million procedures reported followed by another injectable, Hyaluronic Acid, with over 2.8 million procedures involved.
These numbers are likely to continue to increase with the use of Apps such as Mod Your Bod, Plastic Surgery Simulator and Facetouchup. In general, such Apps are targeted at young girls and have been described by the Australian Society of Plastic Surgeons as “irresponsible and disturbing.”
Is cosmetic surgery safe?
Cosmetic surgery, like any surgery, can lead to complications and sometimes those complications can be life threatening. Infection is usually a risk of any surgical procedure and where an anaesthetic is administered, it is important that the correct dosage of anaesthetic is administered and the attending doctor has the skill and experience to respond to any complications arising from same.
In January 2015, a 20 year old woman nearly died when she suffered a cardiac arrest during a routine breast implant procedure in Sydney at The Cosmetic Institute, (“TCI”) and in September 2015, ABC News reported that a 32 year old woman had been treated for a suspected collapsed lung following a breast augmentation procedure at the same clinic.
The above cases and a series of others were investigated by the NSW Health Care Complaints Commission, (“NSW HCCC”). Their findings were of serious concern: that 6 breast implant patients had suffered potentially life threatening complications during surgery over the previous year, that the local anaesthetic agents used at TCI were in excess of safe doses, and on occasion dose calculations were not individualised according to patient body weight.
Apart from the risks of infection and of complications arising from the use of anaesthetic medication, there is also the unpredictable risk of the result not being what the patient expected, leaving them with unsightly scarring, embarrassment and/or depression.
The likelihood of such risks eventuating can be minimised by engaging a properly qualified and experienced medical practitioner and ensuring that the procedure is performed in an appropriate facility.
In June 2016 the NSW HCCC investigated a complaint by a female who underwent a double eyelid suture in a residential apartment in Sydney. The treatment caused bruising, scarring and damage to her eyelids. The HCCC found that the person who performed the procedure was not registered as a medical practitioner in Australia and was not qualified to perform the procedure. It is reasonable to assume that the complications she suffered would have been far less likely to occur had a qualified and experienced medical practitioner performed the procedure.
These considerations are relevant to both surgical procedures, and non-surgical procedures like Botox and Hyaluronic Acid injections.
In June 2014 the Australian Society of Plastic Surgeons issued a Policy Statement for the Administration of Botulinum Toxin By Nurses, summarising the relevant legal requirements, including the fact that the injections should be administered by a doctor or adequately qualified and properly supervised nurse injector. Their statement also emphasised the importance of the procedure being performed in an appropriate setting where they are equipped to deal with anaesthetic toxicity, allergic reactions and where there is proper adherence to infection control principles.
Regulation of the cosmetic surgery industry
Until recently, there was limited regulation or standardisation applicable to medical practitioners offering cosmetic surgery.
Not all doctors are trained for invasive surgical procedures. Despite this doctors with only a MBBS (Bachelor of Medicine and Bachelor of Surgery) degree can perform surgery, provided they have obtained the patient’s consent. (Whether or not informed consent has been obtained when the doctor has failed to disclose their lack of experience or training is however questionable from a legal perspective) who promote themselves as Cosmetic Surgeons, and Plastic Surgeons. A GP can call themselves a Cosmetic Surgeon. However, Plastic Surgeons, and in particular Specialist Plastic Surgeons, undergo extensive specialist training in all aspects of plastic and reconstructive surgery.
The cosmetic surgery industry is lucrative business. Unfortunately, this makes uninformed patients vulnerable to unscrupulous and commercially motivated operators.
Prospective patients need to be aware that although the ACCC has developed advertising guidelines for doctors, to date they have not been strictly enforced. Consequently, unethical advertising has occurred with some medical practitioners describing themselves as surgeons or implying they have formal surgical qualifications when they do not.
In 2016 Guidelines were introduced by the Medical Board of Australia to inform medical practitioners and the community of their expectations of medical practitioners performing cosmetic medical and surgical procedures.
The Guidelines:
- Emphasise the importance of proper consultation with the patient prior to the procedure;
- Impose additional responsibilities when a patient is under 18 years, including a cooling-off period and a requirement that the patient be evaluated for underlying psychological problems, (except in cases of minor procedures where there is no indication of any underlying psychological problem);
- The provision of written information regarding the intended procedure and obtaining informed consent;
- Address post-operative management including ensuring that the procedure is performed at an appropriate facility when sedation, anaesthesia and/or analgesia is required;
- Require that procedures should only be performed if the medical practitioner has the appropriate training, expertise and experience to perform the procedure;
- Include an express prohibition against misleading advertising as to skills or experience;
- Financial arrangements are addressed including a prohibition against offering patients additional products or service that could act as an incentive to treatment such as free or discounted flights or accommodation.
We anticipate that breaches of the Guidelines will expose the medical practitioner involved to disciplinary action by the Medical Board and also be persuasive evidence in any litigation pursued by the patient that the medical practitioner has breached their duty of care to the patient.
Advice
Before Surgery
Before undergoing any cosmetic procedure, whether surgical or not, you should make enquiries about the doctor’s experience and qualifications and in particular, their experience in performing the particular procedure you wish to undergo.
If it is a surgical procedure, verify that your doctor is a specialist plastic surgeon.
Ensure you are making an informed decision. Ask your doctor to tell you not only about the benefits of surgery but also the risks.
Read the Guidelines referred to above and discuss any queries with your doctor.
They can be found on the Australian Medical Board’s website.
After Surgery
If you have suffered complications from cosmetic surgery you may be entitled to claim compensation. This will depend upon various factors including whether you were properly informed of the risks associated with the procedure before deciding to go ahead and/or the qualifications, skill and experience of the person who performed the procedure.
Generally, as explained elsewhere in our Personal Injury Blog, adults only have 3 years from the date of an injury to bring a claim but there are circumstances where this can be extended.
It is important therefore that you obtain legal advice promptly.
Our team at Lindbloms Lawyers have solicitors with many years experience in handling medical negligence claims, including procedures involving cosmetic surgery.