Botched cosmetic surgery is considered a negligent act in the eyes of Canadian law. (Photo: REUTERS/Mike Segar)
A little nip and tuck here and there has never hurt anybody, right? Wrong!
We live in an age where science has advanced enough that we can use its powers to alter our appearance for cosmetic purposes. Globally, especially in the western world, society is obsessed with beauty and aesthetics, so plastic surgery is normal. However, what could you legally do if something goes wrong or you wind up with a botched job?
Botched cosmetic surgery – surgery that leaves a patient deformed or infected – is considered a negligent act in the eyes of Canadian law. Specifically, it falls under a category called tort law. This means that if a person has suffered injury due to a negligent act and there’s evidence showing the direct link between the injury and the act, the plaintiff (the party who initiates the lawsuit) could sue and be awarded damages (monetary compensation).
For instance, if a patient goes for a procedure such as liposuction, breast augmentation, rhinoplasty, etc. and there is a breach in the standard of care due to the surgeon’s negligence, damages would be awarded. The party being sued is known as the defendant.
The hospital or facility would not be sued because medical practitioners operate as independent contractors (although there are circumstances where this happens).
An example of a standard of care breach is when a doctor uses unsterilized tools during a procedure, is aware but continues to operate and this leads to patient infection.
However, a party cannot just sue someone for damages if the medical practitioner performing the cosmetic surgery is not following rules and regulations alone; there needs to be injury and evidence of that injury to take any legal action, according to tort law. Negligence cannot be called in the air.
Take the 2006 case Asgari v. Jain, for instance. In this Ontario Superior Court of Justice case, the plaintiff, Safoura Asgari claims damages against Dr. Padma Jain, as well as the clinic. Asgari claimed damages because of “a lack of informed consent, misrepresentation and battery.” The doctor was accused of negligence for exercising “poor judgement” when performing a liposuction procedure on the plaintiff’s arms (section 34) as well as failing to disclose information about the procedure (section 65). The result? The plaintiff’s claims against the defendant were dismissed because the doctor was uninformed of a previous procedure Asgari underwent, so she was not found to be negligent after all.
Similar to less invasive cosmetic procedures such as microblading, the best thing to do is to be proactive: research the cosmetic surgeon, their track record and the facility where the procedure would be conducted before going under the knife.
You only have one body, so tread with caution when entering the world of cosmetic surgery.