Breach Of Contract AND Medical Malpractice: Two Theories Of Liability For Victims Of Plastic Surgeon Mistakes

Many people are surprised to learn that healthcare providers can be liable for elective surgery. This includes cosmetic surgeries. Indeed, a healthcare professional who performs any negligent healthcare procedure, surgery, or care and treatment can be liable to the victim. This includes any cosmetic surgeries or elective procedures done by a healthcare provider—even medically unnecessary surgeries!

But can a plastic surgeon be liable for breach of contract as well?

As posted before, and what is an infamously famous case known as the hairy hand case (Hawkins v McGee), a doctor does not guarantee a good outcome. That is, all a medical professional has to do is use the same amount skill and knowledge as a reasonable prudent physician in his or her locality would have done in similar circumstances. Essentially, a medical professional must act in a manner that another healthcare professional would have in the same situation. This is not guaranteeing a certain result or a good result.

However, when people go to a plastic surgeon, many times they are trying to correct something. This could be scars, a deformity, or another condition. Thus, patients ARE going to a plastic surgeon who will have to guarantee a certain outcome—otherwise the patient would not go to that plastic surgeon or would not want to undergo that elective surgery. Therefore, this means that a patient may not have a strong medical malpractice case—unless, of course, the healthcare provider was negligent in rendering the care and treatment—but the patient MAY have a breach of contract case.

That is right—breach of contract!

Under New York law, there is an interesting case with the caption of Frank v Maliniak. In this case from 1931, which is still good law, a plastic surgeon expressly promised to a patient that he would make all incisions from the inside of the patient’s nose and mouth to hide the scars to perform the operation. The patient agreed to the elective surgery with that understanding, and underwent the procedure. However, the plastic surgeon ended up making several external incisions which resulted in scarring. The patient argued both that there was no was no informed consent and that the plastic surgeon breached the contract to make only internal or hidden incisions.

And the court agreed, finding the plastic surgeon liable for a breach of contract as the plastic surgeon expressly promised internal or hidden incisions only! Another tool for a victim of medical malpractice to use to compensate his or her rights which are violated.

But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com. You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.