Cosmetic surgery includes all surgical and medical procedures that patients resort to for the improvement, restoration, or enhancement of their physical features. These interventions are almost always optional and seek to change the external body in a way that pleases the individual. As is the case with all medical procedures, cosmetic surgeries also have chances of adverse effects, and wrong performances. Patients have the right to raise complaints and leave legal actions against a surgeon for his surgery where the surgeon does not perform returning the expected results or mistakes occur.
Cosmetic Surgery and Its Legal Consequences
Compensation for cosmetic surgery mistakes is the way of addressing the law for the benefit of the patients who suffer any aesthetic loss owing to the unskilful carrying out of surgery. When the expected results are not achieved, mistakes happen, or there are side effects, patients risk sustaining economic and psychological effects. In such instances, suing the plastic surgeon who practiced on the patient or the facility where the procedure was done is an option in order to recoup the losses suffered. This essay outlines the steps that are taken in the process of claiming for damages caused by cosmetic surgery errors how to make claims of this kind and what heads of damage can be claimed in such a case losing the battle against cosmetic surgery issues.
1. The Construct of Cosmetic Medical Treatment Designs.
Almost all medical cosmetic procedures are targeted and chosen lick this by those who want to improve how they look for personal reasons. Most of the times, these procedures are voluntary and not of any medical relevance. Cosmetic interventions can be very simply put into two broad categories:
Procedures that are Aesthetic in Nature and Optimize Beauty: These are the procedures aimed to improve the look of a person, largely including reconstructive surgeries such as rhinoplasty, face lift, and liposuction. These procedures are done for pure aesthetic reasons and do not stem from any physical needs.
Procedures that are Aesthetic in Nature but provide Therapeutic Benefits: In addition to improving one’s aesthetic look, those procedures also have a functional purpose. For instance, actual or potential deformation repair, such as after an accident or modification of a birth defect (understanding them in a wider context) cases, would silhouette enhancement and elevation the quality of life.Cosmetic Surgery: An Overview and Law Related to This Medical Field in Turkey
2. Legal Relationship Between Cosmetic Surgeon and Patient
Within the framework of private health care, a doctor performing therapeutic medical procedures is typically considered an agent acting under an agency contract. In such medical interventions, a legal dispute will be resolved based on the provisions of this agency contract, which stipulates that the doctor must take due care of the patient during the entire course of treatment.
In case of cosmetic treatments responding to the aesthetic needs of the client, ] the relationship takes, by assumption, the nature of a work contract (contract for services). In this case the main objective is not the treatment, but the performance of that which the patient has requested himself, and such turns the role of a cosmetic surgeon into that of a contractor who has to deliver a promised result. If the desired outcome or expectations are not achieved, in such a case, the patient has every right to sue the doctor or the medical institution.
3. How the Contract for a Cosmetic Surgeon Creates Rights and Duties
In order to satisfy the requests of patients and ensure their safety and satisfaction, the cosmetic surgeon has a number of essential duties to perform. These include:
Proper Diagnosis: The surgeon shall make a diagnosis based on the health status and the wishes of the patient.
Selection of Treatment Method: The surgeon should take the safest and most beneficial treatment, which will not in any way endanger the health of the patient.
Obtaining Informed Consent: The surgeon must first prepare the patient and explain the procedure, what are the expected results and possible complications and obtain her/his consent.
Respect of the Informed Consent: It is imperative that the surgeon does not administer or perform any more interventions than those previously agreed with the patient.
Executor of Results: The cosmetic surgeon is obliged to deliver the result, which the patient has asked for. Wasting the opportunity to deliver a result, gives the patient a right to claim damages.
Performance of the Procedure: This is important as the skill of the surgeon is an important factor; unless otherwise agreed the surgeon must carry out the procedure himself.
Diligence and Loyalty: During the course of treatment, the surgeon is also obliged to exercise care and fidelity in the best interests of the patient.
Minimizing Risk: The surgeon must perform the procedure in a manner that does not pose any unreasonable risk to the health of the patient.
Respect for the Patient's Honor, Dignity and Privacy: Cosmetic surgery is an intrusive procedure that encroaches upon the very private life of the patient. The surgeon should protect the privacy of his/her patient and keep all information relating to them confidential, unless authorized to disclose that information by the patient.
4. Legal Liability where there is Cosmetic Procedure
In all cosmetic procedures, the relationship between the surgeon and the patient is primarily based on an understanding and a contract. Hence, there exists a possibility of liability in tort in the event of any breach of obligations under the contract.
Liability which arises out of or in connection with a contract: where a relationship rests on a contract, the parties must exercise their rights and perform their duties as prescribed by the contract. If a party cannot comply with contractual obligation, he must meet the following requirements for breaching contractual obligation:
Breach of Contract: The surgeon or patient must have involved himself/herself in any action that is contrary to the duties stipulated in the contract.
Impute contravention: The degree of fault lying for this incapacity must be imputed or may be classified under sheer carelessness.
Damage: There has to be an injury on the patient as a result of the breach.
Causal Link: This is the degree in which a wrong act can be said to have caused the injury suffered.
In case these elements are established, then the surgeon or the patient will be culpable for breach of contract.
Nature and Legal Risks of Aesthetic Contracts: Aesthetic contracts tend to be treated as ‘works contracts’ in most jurisdictions. In such types of contracts, the aesthetic surgeon is primarily concerned with a specific aesthetic result, which he is paid by the patient in order to achieve it.
Risks Management in Cosmetic Surgery Sometimes, if not always, surgical interventions directed towards aesthetic enhancement involve complications that may hinder the desired result, or arise in the course of the procedure. Such problems generally arise in two main categories:
Surgeon’s Errors: Misdiagnosis, misuse, working without patient’s consent, negligence, and substandard materials are considered ‘surgical errors’ and are termed as ‘medical malpractices’ These cases may lead to disciplinary actions even criminal charges against the surgeon.
Patients’ Specific Features: The age and physical peculiarities of the patient may have adverse effects on the self healing process and hence the power of surgery. A surgical process may take place under certain expectations and time frames in such situations.
Complications and Legal Accountability
Complications pose a specific assessment to be either unpredictable or impossible to avoid. Typically, a surgeon is not responsible for complications that arise if the surgeon has taken all the necessary safety measures and has warned the patient of those risks prior to any treatment. On the other hand, if the risks were not properly communicated to the patient before carrying out the operation, such acts may be deemed illegal and the physician may face civil and possibly even criminal charges.
5. Responsibility In Case Of Damages Caused By Tort In Cosmetic Practices
Contract might serve as a legal basis for the apportionment of liability in cosmetic business, however, the provisions of Article 49 of Turkish Code Obligations concerning torts could also be applicable. In accordance with these provisions, in order for tort liability to exist, the following elements must all be present:
Unlawful Act: There has to be a violation of law by doing or refraining from doing something.
Fault: The act must be in the form of wrongful act or acts based on negligence.
Damage: The wrongful act must have caused loss.
Causal Link: The wrongful act must result in damage that can be traced back to it.
Should these elements be present, the patient is able to sue the surgeon, on grounds of torts. In such situations, when the conditions are fulfilled, the injured patient is entitled to pursue a claim for economic and non-economic damages.
Moreover, where death or bodily harm results from the wrongful act of the surgeon, such actions could amount to a careless or reckless crime per the provisions of the Turkish Penal Code, thus attracting criminal charges against the surgeon.
It is also very important to point out that even as cosmetic intervention does involve a breach of physical integrity, it is not deemed unlawful as long as it is done with the patient’s consent and within acceptable parameters of the law. In these instances, the surgeon is not held liable for any torts.
6. Liability Arising from Non-Agency Actions in Cosmetic Operations
Contingencies with potentially serious ramifications for the patient's health and well-being may surface during cosmetic procedures. In this respect, especially when the situation is an emergency, or the patient is not in a position to express his/her will, it may prove impossible to secure the patient’s consent. In these scenarios, the treatment performed may not fit into the ambit of the existing contract.
In situations where a medical professional, such as a cosmetic surgeon, takes action in the best interests of the patient without obtaining the patient’s consent, the provisions for non-agency actions are applicable. The procedures performed with the patient's best interest as the primary goal, and in line with the Article 24/2 of the Turkish Civil Code are regarded as legally acceptable. Hence, due to the absence of any wrongful act, the surgeon is not liable for said torts.
7. Medical Malpractice in Cosmetic Operations
Mistakes in the processes of diagnosis, intervention, and treatment concerning beauty operations can happen when health professionals do not adhere to professional demands, do not meet medical procedure requirements, lack necessary expertise, or simply due to inexperience, carelessness, or negligence. This is considered medical malpractice. Examples include:
Unauthorized Individuals Performing Interventions: Medical malpractice may arise when a third party performs any procedures in an unauthorized manner or conducts any actions beyond the scope of their professional competence.
Insufficient Information: If the patient is not adequately informed about the method, scope, and potential risks and outcomes of the intervention.
Exceeding the Patient's Consent: In the event that the intervention goes beyond the scope of the consent given by the patient (with certain exceptions provided in the non-agency stipulations).
Misdiagnosis: providing a patient with a wrong diagnosis.
Applying Incorrect or More Burdensome Treatment Methods: If a treatment method that is either incorrect or more burdensome than necessary is applied.
Lack of Necessary Care Before, During, and After the Operation: If the necessary care is not provided at these critical stages.
Medico-legal implications arise in cases of medical negligence, and the health practitioner can be held liable for any loss or damage caused as a result of faulty practice. In addition, if the necessary threshold as per law is crossed in a medical malpractice case, medical practitioners may also be subjected to issues of criminal culpability.
8. Factors Affecting or Eliminating Liability
As a rule, in cases of damage resulting from medical actions, the legal responsibility of a surgeon rests on fault liability. Hence, a claim for damages against the surgeon comes into play only after the harm has been caused by a fault of the surgeon. A surgeon’s responsibility can be lessened or even gotten rid of in certain situations and this may also lick down the level of compensation payable to the patient. Entitlement of liability against the surgeon will not accrue if that damage was not caused by the fault of the surgeon and no payment will be recovered.
Situations Eliminating Liability:
Force Majeure: Force majeure encompasses remarkable situations which are either not within the scope of anticipation or transcend the ability of the parties to manage even though they are known beforehand. Due to the absence of an appropriate cause-effect relation between the surgeon’s conduct and the resulting harm in this instance, no such causal connection can follow where the breach of law or contract is hinged on abus de droit that has force majeure as antecedent. Even where the necessary steps are taken, damage resulting from a force majeure does not ascribe liability unto the surgeon.
Victim's Fault: In situations where the injury sustained is largely the result of the victim’s own negligence and this victim's negligence far exceeds the degree of negligence attributable to the surgeon, the causal link is presumed broken and the surgeon’s liability in tort is extinguished.
Third Party's Fault: In the event that a party not involved directly in the situation at hand, the victim and health professional being an exception, is principally to blame for the occurrence in question and this blame outweighs the blame directed at the surgeon, the relevant causal relationship is broken and as a result, the surgeon is not held legally responsible.
Legally Permitted Risk: In case the surgeon has properly warned the patient regarding possible complications and risks associated with the procedure prior to its undertaking, and the surgeon has received the patient’s informed consent while acting within the limits and scope of medical duty and necessity, complications are regarded as lawful risks. Here, the connection between the actions of the surgeon in question and the harms caused is cut off, and the surgeon bears no responsibility in a court of law.
Situations Mitigating Liability:
Concurrent Fault (Contributory Negligence): In cases of patient harm where fault is attributed to both the patient and surgeon, this additional fault serves to diminish the legal liability of the surgeon and there will be a reduction in the quantum of compensation payable.
Liability Waivers:
The provision of medical care is a practice that must be provided by licensed and trained, in their respective fields, health professionals. Otherwise, the medical practice is rendered illegal.
As per Article 115/3 of the Turkish Code of Obligations, in the case where a service that requires special expertise is legally allowed to be performed only with the relevant permission or authorisation from the relevant authorities, any prior agreements which relieve the debtor from the Guarantees and undertake the responsibility of minor negligence are recognized as null and void. Hence any liability waivers with the physician are made void.
9. Determining Liability
In the execution of his/her duties before, during, and after an operation, the cosmetic surgeon must adhere to the ethical norms, the governing laws and the agreement. Any person who sustains injury from the breach of obligations imposed on the surgeon has a cause of action. This injury can either be in the form of material damages or non-material injuries. Hence, claims of material or non-material injuries and suffering are tenable against the cosmetic surgeon in relation to his or her professional conduct.
To bring a case against the attending physician for 'surgeon's liability', several factors need to be demonstrated first. In the event it is determined that the surgeon is at fault, the claimant may, as a rule, recover, and, under the Turkish code of civil procedure article 190, the party carrying the burden of proof is the claimant, in this case, the injured party. Simply put, an individual who alleges that he/she has suffered damages has to provide evidence showing: a case for causative loss, specifying the details of such loss, and showing such loss resulted from violations of duty on the part of the cosmetic surgeon.
At the proof stage, the contract of the parties and the documents, medical and other reports, opinions and examinations, and witnesses are all important means of evidence.
Furthermore, it is necessary to emphasize that in line with the Court of Cassation’s practices and the majority of opinions held in the doctrine, it is the onus of the surgeon to show that the patient was duly informed and his/her consent obtained.
According to Article 24/2 of the Turkish Civil Code:
"Unless justified by a higher private or public interest or by the exercise of a right granted by law, any infringement of personal rights is unlawful unless the injured party consents."
After any act of interference against bodily integrity, personal rights without the consent of an individual. It is illegal. When interpreting Article 24/2 of the Turkish Code of Civil Procedure and Article 190 of the Turkish Civil Procedure Code, one is compelled to conclude that it is the cosmetic surgeon who bears the onus of proving that informed consent was obtained.
10. Claims Arising from Cosmetic Medical Damage
Negative results in aesthetic procedures are considered as instances of medical malpractice. Regarding medical malpractice, there are times when a surgeon may be liable, criminally, or civilly, or even face administrative actions.
Allegations of medical malpractice include all acts or forbearances which amount to a breach of the standard of care employed in diagnosis, treatment, and convalescence. Depending on the degree of culpability of the medical professional, in this situation, a cosmetic surgeon, twin debts with respect to financial and emotional torture can be claimed. Existing claim for pecuniary and non-pecuniary types may be claimed separately or together.
Claim for Material Damages:
In litigation matters concerning medical negligence, the burden of substantiating the damage rests with the claimant, in other words, the patient. In the event that it is not possible to ascertain the exact amount of damage, the court is empowered to reach a conclusion.
The claimant who has suffered material damage can seek compensation for:
Treatment costs
Loss of earnings
Losses due to reduced or lost earning capacity
Losses due to a destabilised economic future
Additionally, if the patient dies due to medical malpractice, the deceased patient's relatives can claim for:
Funeral expenses
Treatment costs if death did not occur immediately
Losses due to reduced or lost earning capacity of the deceased
Losses suffered by individuals who were dependent on the deceased
Claim for Non-material Damages:
Claims for non-pecuniary damage are to indemnify the claimant for any harm caused by emotional suffering. Still, the level of this indemnity cannot be extravagant so as to have windfall gains to the person, but only limited to the non-material damage incurred. Non-material damages may be claimed in the following circumstances arising from a defective cosmetic surgery:
In cases of bodily integrity being compromised: the pain, suffering, and distress experienced by the injured party
In cases of severe bodily harm or death: the pain, suffering, and distress experienced by the injured party or the relatives of the deceased
Accordingly, the judge will assess the conditions and determine the appropriate amount of non-material damages to be paid, which should not lead to enrichment.
11. Claims Arising from Errors in Cosmetic Medical Procedures
In cases of malpractice in cosmetic medical procedures, it is crucial for individuals seeking to pursue legal claims to adhere to procedural rules. Failure to comply with procedural requirements in the legal process can lead to loss of rights, exacerbating the grievance experienced.
Parties to the Claim:
Claims arising from medical malpractice can be filed by the injured party, their legal representative, or relatives against the health professional or medical institution involved in the faulty cosmetic procedures, depending on the nature of the claim.
Proof of Cosmetic Medical Error:
The evidence of inappropriate conduct is among the most crucial aspects which influences the resolution of a medical malpractice case. Article 190 of the Turkish Code of Civil Procedure states that the burden of proof rests with a claimant, in this case the person claiming damages, who possesses this title and seeks compensation. This means that the aggrieved party must prove that the medical professional carried out a flawed intervention.
There exists, however, an exception to the general rule that the claimant bears the burden of proof. In this respect, it is well-established in the decisions of the Court of Cassation, as well as in the author’s dominant opinion in doctrinal works, that the doctor must prove that a patient’s consent was obtained. When taking into account the provisions of Article 190 of the Turkish Code of Civil Procedure in link with Article 24 of the Turkish Civil Code, it is evident that a doctor is required to demonstrate that he or she has performed the duty of providing information to the patient.
Statute of Limitations for Cosmetic Medical Procedures:
With regard to allegations regarding enhancement procedures, the statute of limitations is mostly five years pursuant to Article 147(b)(6) of the Turkish Code of Obligations. On account of the fact that such an injury is due to the surgeon’s gross negligence, the limitation period is increased to twenty years, pursuant to the provisions of Article 478 of the Turkish Code of Obligations.
Competent and Responsible Court:
Jurisdiction of Court: For conflicts related to cosmetic medical procedures, the agreement made between the doctor and patient is typified as one for the provision of services. Such disputes are settled through sovereign civil courts.
Competent Court: For disputes arising from cosmetic procedures, the competent court is the court of the location where the cosmetic operation was performed.
If you have experienced complications from a cosmetic procedure or believe that your cosmetic surgery did not meet the expected standards, do not hesitate to reach out for legal support. At CCS Law, our team of skilled solicitors is dedicated to guiding you through the process of securing the compensation you deserve.
Disclaimer: This article is intended for informational purposes only and does not constitute legal advice.
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