When performing an operation of an aesthetic nature, namely, a surgery intended to correct a physical defect and/or improve appearance, the
result assumes greater importance. For this fact, as previously mentioned in other articles, the obligation of the doctor who performs cosmetic surgery has been assumed in the Portuguese jurisprudence as an obligation of result and not of means, as occurs
in cases of medical acts, even though identical, practiced in the exercise of curative medicine. Therefore, if the results obtained with the surgery are not subsumed in a situation, considered according to the rules of common experience, as normal or
common, it is very likely that the medical act will be illegal.
But in addition to the performance of the medical act itself, it is also essential for the doctor to accompany the patient in the moment prior to the surgery, with the correct explanation of the intervention and the risks associated to it, and in the moment after the surgery, with the correct assistance and monitoring of the patient's state of health. If, in addition to the unexpected result, during the postoperative period, no active, effective and continued procedure is carried out, even after the patient's discharge, to ensure that the patient improves the objectively abnormal aspect left by the surgical procedure, the illicit conduct continues.
When a surgery is performed, the doctor in charge is expected to apply the correct techniques, namely, following the existing guidelines for the medical act in question, and when this does not occur, there must be a clinical justification for this effect. In effect, as jurisprudentially affirmed, "The use of incorrect technique within the current scientific standards translates to the so-called medical malpractice, whereby, if the doctor makes a mistake in the election of the best technique to be applied to the patient, he acts with guilt and, consequently, becomes responsible for the injuries caused to the patient". But this responsibility may continue and even be aggravated if, in a post-operative phase, the aforementioned doctor passively or deficiently accompanies the patient, there being a link of causality between this negligent action and the damage that the patient suffers as a result of this fact. Therefore, in the phase of reparation of the damages arising from this action, not only the damages (namely aesthetic) resulting from the incorrect action in the surgery, but also all the expenses which the patient has suffered due to the lack of assistance at the moment subsequent to that medical act (for example, treatment carried out in order to minimise the consequences of the medical act or aid provided by medication or third parties which the patient has borne) should be considered.
Therefore, we may state that medical malpractice (and consequent responsibility) occurs, in reality, at three distinct moments: the preparation of the surgery, with its explanation to the patient, clarification of any doubts and associated risks, the surgery itself, in which it is expected that the doctor assumes the correct technique to perform it and, as well as, the post-operative period, in which the provision of care in effective and active monitoring of the patient is assumed.
Belzuz Advogados has a team of lawyers with extensive experience in matters of health law and litigation who can advise on issues of medical negligence in plastic surgery.
Belzuz Advogados SLP
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