Over the last 10 years, Flaherty & Fardo LLC has helped numerous women recover substantial monies from medical malpractice claims involving plastic and cosmetic surgery errors. I have also made a mistake or two in accepting these types of specific cases. This article will provide some advice to fellow lawyers on what to consider when reviewing a potential botched breast augmentation.
Breast augmentations involve a variety of surgeries including breast implants, breast lifts, breast reductions and breast implant removals. Over the last decade, the amount of breast augmentations in the U.S. has risen over 40% to almost 400,000 annually. With the increase in surgeries, there has also been an increase in the overall number of mistakes and fatalities.
Here are three basic rules for screening potential botched breast augmentation cases.
Rule #1: Understand the bias
Most breast surgeries are elective. It is very easy for defense lawyers to argue that your client chose this ‘elective’ procedure. Defense attorneys may further insinuate that by electing this procedure your client is vain, and should not be awarded money for trying to improve their physical appearance.
Regardless, you need to ask potential clients tough questions about why they chose this elective procedure. In screening these cases, I will often cross-exam the clients early in the interview process to learn their true unprepared response. You do not want to accept a plastic surgery case without thoroughly vetting potential clients and their life history.
Rule #2: Research the defendant’s training
Once I think I have an acceptable client, I will immediately review all online information and publications about the defendant. Plastic surgery cases are different than regular medical malpractice cases, whereby there are an increasing number of non-plastic surgeons performing plastic surgery, especially involving the breasts.
Many times, family practitioners and/or OB/GYN doctors will offer services for breast augmentations. Weekend classes are offered by non-plastic surgeons to help other non-plastic surgeons experiment with plastic surgery. If it sounds scary, it’s because it is.
I have also handled cases whereby hospitals have allowed these non-qualified physicians to attempt plastic surgery without proper credentialing. This is important because it means a mediocre case can become a great case, if the hospital or surgery center should never have allowed the doctor to perform the surgery in the first place. Of course, reviewing the records in detail is crucial, but as important is reviewing the experience and credentials of any prospective doctor defendant.
Rule #3: Don’t be fooled by the pictures.
I have reviewed many cases with horrific photos. The reality is that I only considered about 20% meritorious cases and only accepted about half of those. However, I have made the mistake, albeit several years ago, of seeing horrific photos of breasts in a medical malpractice case and believing that the image would be strong enough to warrant accepting the claim. The reality is a bad result does not equal a case in plastic surgery. There are increased inherent risks in plastic surgery, whereby patients can have awful results without a deviation from the acceptable standard of care.
I have also learned that it can be difficult to find board certified plastic surgeons to testify against fellow plastic surgeons (especially board certified), simply because of a bad outcome. Board certified plastic surgeons are a tight-knit fraternity, and less then 3,000 exist nationwide. They are reluctant to testify against each other, and worse are fearful of repercussion from the ASPS (American Society of Plastic Surgeons). The ASPS monitors questionable testimony by it’s members and can terminate membership of a board certified physician upon a finding of improper testimony.
Do not misunderstand me, photos of your client’s disfigurement may be key to a large recovery, but you should never rely solely on a picture in determining whether or not you have a plastic surgery case involving the breasts. You must also carefully screen your client and fully understand the doctor’s qualifications or lack thereof. Finally, you need to make sure you can find a board certified plastic surgeon to testify as your expert.
This article is written for entertainment purposes only. It should not be relied upon for legal advice, and in no way does this article create an attorney/client relationship. We only represent individual(s) once there is a signed representation and fee agreement in place. Please read full legal Disclaimer.
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