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Medical Malpractice Claims and Cosmetic or Plastic Surgery

Medical malpractice happens when a medical professional acts negligently. Being unhappy with the results of plastic or cosmetic surgery does not equate to medical malpractice. Proving negligence, and recovering damages in particular, in cosmetic or plastic surgery can be more difficult than in other medical malpractice cases. That is in part because most cosmetic surgeries are elective, they are not medically necessary. Plastic surgery, on the other hand, is often medically necessary. 

Plastic Surgery and Cosmetic Surgery Differences

While the two terms may overlap, and most people use the terms interchangeably, there are significant differences between cosmetic and plastic surgery. 

Plastic surgery is surgery that is done in order to reconstruct or repair a body or facial issue. These issues are typically caused by trauma, disease, burns, or a birth defect. Since it is reconstructive, plastic surgery is not elective surgery. Typical plastic surgery procedures include:

  • Breast reconstruction
  • Cleft palate repair
  • Congenital defect repair
  • Burns


While many plastic surgeons do perform cosmetic surgeries, plastic surgeons are the only doctors who can perform plastic surgery. Cosmetic surgeries in contrast can be performed by a variety of doctors, depending on the procedure and location of the surgery. 

Cosmetic surgery procedures are undertaken to improve a person’s appearance and often their self-esteem. Since cosmetic surgery treats a person’s appearance, it is considered elective surgery. Examples include:

  • Skin rejuvenation - botox, fillers, laser resurfacing
  • Facial contouring and rejuvenation - rhinoplasty, chin and cheek implants, facelifts, eyelifts, chemical peels, collagen injections, dental surgery, dermabrasion, neck lift, and  laser hair removal 
  • Body - liposuction, tummy tucks, arm lifts, and breast augmentation, lift or reduction, 

Both plastic and cosmetic surgery can go wrong, leaving a patient with undesired and unintended results. Examples include:

  • Puffiness from botox
  • Infection
  • Nerve damage
  • Scarring
  • Blood clots
  • Disfigurement 
  • Paralysis
  • Complications from anesthesia

When Surgery Goes Wrong

If the surgery goes wrong, or if the patient is not happy with the results of the surgery, it does not automatically mean that there is a claim for medical malpractice. In order for there to be actual medical malpractice, the patient will have to show negligence on the part of the doctor.  In order to have a medical malpractice claim, the following elements must be shown:

  1. The doctor had a duty to the patient. This is generally the easiest element of a malpractice claim because doctors owe their patients a duty of care; 
  2. The doctor breached the duty either by acting negligently or failing to act;  
  3. The breach of duty is what caused the patient’s injury; and 
  4. There were actual, compensable, damages. This includes medical bills and lost wages. 

In North Carolina, before filing a lawsuit for medical malpractice, the victim must hire an expert witness to review medical records. That expert must be versed in the speciality in which they are reviewing records, so either cosmetic or plastic surgery, and agree to testify that the doctor breached the duty of care. Failure to hire an expert prior to trial will result in the court dismissing the case. 

If a patient was injured as a result of medical malpractice, damages are available. They include both economic and non-economic damages.

Economic damages are designed to return a victim to the same place they would have been had there been no medical malpractice. Economic damages include medical costs like hospital bills, doctors, visits, rehabilitation, assistive devices and prescriptions. They also include lost wages if the victim of medical malpractice has to miss time from work due to their injuries. 

Non-economic damages are designed to compensate the victim for the pain and suffering resulting from the medical malpractice. Non-economic damages include mental and physical distress, loss of enjoyment, loss of consortium and inconvenience. 

In the case of the death of a patient, the family of the patient may recover both economic and non-economic damages including medical costs, lost wages, funeral and burial costs, loss of medical benefits, and loss of a pension.

Punitive damages are intended to punish the wrongdoer for egregious behavior rather than compensate the victim. They are awarded to send a message to both the negligent doctor and society, that this type of wrongdoing will not be accepted. In North Carolina, punitive damages may be available if the doctor’s behavior was done with malice, or if the doctor’s behavior was willful or wanton. 

Beginning in 2011, North Carolina law imposed a limit on the amount of non-economic damages available to victims in medical malpractice cases. The number was set at $500,000 and is adjusted each year for inflation. Economic damages are unlimited. 

Filing a Medical Malpractice Claim in North Carolina

Medical malpractice claims, like all claims, are subject to a statute of limitations, or a time frame in which suit must be filed. In North Carolina, the victim of medical malpractice typically has 3 years to file a claim in state court. Exceptions include if the injury could not have been discovered at the time when it occurred, then the victim has one year after the injury occurred, or 4 years after the malpractice occurred, to file suit. Another exception includes the discovery of an object left inside a person, for example when something like a sponge or a scalpel is left inside a patient, then the victim has 10 years to bring a claim. Statutes of limitations often have exceptions so it is important to consult with an experienced attorney to determine the appropriate statute of limitations. Failure to timely file may result in the court refusing to hear the case. A Charlotte, North Carolina attorney can make sure that you timely file your medical malpractice claim.  

Let Our Charlotte, North Carolina Medical Malpractice Attorneys Review Your Case

If you have a medical malpractice case, the Charlotte, NC based lawyers at Rosensteel Fleishman, PLLC are experienced attorneys who can help you understand your rights and whether or not there is negligence to proceed with a medical malpractice claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation.

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