Many claims are brought against doctors in this area for failing to adequately explain the risks of the procedure, because of the way the procedure is performed or because of the post-operative care. However where the procedure is elective, the Courts have been reluctant to award compensation where the claim is based upon a failure by the doctor to properly explain the risk of the procedure, making these cases difficult.
Medical negligence / malpractice claims involving cosmetic surgery include:
poor outcomes from dermabrasion, chemical peels and
laser surgery to face and other parts of the body
face-lift surgery resulting in unexpected scarring
face-lift surgery resulting in injury to the
accessory nerve
breast-reduction surgery resulting in unexpected and
unsightly scarring
breast-uplift surgery resulting in scarring
liposuction procedures resulting in scarring
liposuction surgery resulting in an unrecognised
perforation to the bowel
cosmetic surgery performed without proper consent,
and
poor outcomes from rhinoplasty.
Summary of cosmetic surgery cases
FAQ about Cosmetic Surgery
How do I make a claim?
If you think you have a medical negligence claim, contact the Maurice Blackburn Medical Negligence team. We will take a statement from you about what has occurred and then provide you with a preliminary assessment. If we believe you should proceed further with your claim, we will then carry out an investigation of your case. An investigation will involve obtaining your medical records and reports from your treating doctors, if appropriate, then obtaining an independent medical expert's opinion.
How much will it cost?
In medical negligence cases that we believe have merit, we will conduct the investigation on a 'no win - no charge' basis. This means you will only be charged profit costs in the event you receive an award of damages and no profit costs will be charged if the claim is not pursued after being investigated.
If proceedings are issued after investigating the claim and the claim is successful, you will be charged for the costs of the investigation and the legal work performed after issuing proceedings. This will be a charge on the appropriate Court Scale, and you will be given more information about this at the time when the decision is made to issue proceedings. No costs are charged unless you receive a settlement or award of compensation.
However, in medical negligence cases, we require you to pay for the costs of the investigations, such as the fees charged by doctors for providing us with medical reports or by hospitals for providing us with medical records. We have to obtain these reports and records before we can advise you whether you are likely to be successful with your medical negligence case.
If, after carrying out the investigation, we believe that you should proceed with a claim, then we can offer you various remedies for obtaining compensation. If the medical treatment has resulted in an unexpected death, then we may recommend that a report be made to the Coroner's Court. Sometimes we also advise that a report should be made to the Health Care Complaints Commission of New South Wales, the Health Services Commissioner of Victoria or the Health Rights Commission of Queensland.
How long do I have to make a claim?
There are time limits for making a compensation claim. The time limits and pre-litigation requirements vary between States and Territories;
New South Wales
New South Wales law prohibits us from advertising legal
services in connection with Medical Negligence Claims. We regret that we
are unable to provide you with further information.
Queensland
In Queensland, generally Court proceedings must be
commenced within three years of the date of the injury. The Court also has
a discretion to extend this period to one year from the date of knowledge of a
"material fact of a decisive character". However, this is only a discretionary
power and will depend on the circumstances of each particular case. If
Court proceedings are not commenced within the relevant time limit then you are
likely to be prevented from ever bringing a case.
Additionally, under the Personal Injuries Proceedings
Act, a person intending to bring a claim for compensation must notify the
"respondent" by sending them a special form within the earlier of nine months
after the date of the injury or one month after instructing a solicitor to seek
damages for personal injury. It may be possible to extend this time limit
in exceptional circumstances.
The time limits for injuries to children are different,
for both Court Proceedings and under the Personal Injuries Proceedings Act.
Time limits are extremely complex and this information is
simply a general guide. The situation will vary from case to case and it
is essential to obtain specific legal advice about the time limits in your case
as soon as possible."
Australian Capital Territory
In the Australian Capital Territory pre-court procedures
require a claimant to notify a potential defendant of a possible claim within
the earlier of nine months of the incident or appearance of symptoms
or four months of instructing a lawyer regarding a possible claim and the
defendant being identified. Generally, a person has three years from
the time of the injury occuring or if the injury is a disease or disorder three
years before the day you first knew that you suffered an injury that is a
disease or disorder and that the injury is related to someone else's act or
omissions, to bring a claim. If they are a child, there is provision
to extend the time to bring a claim if it involves a disease or
disorder. If Court proceedings are not commenced within within the
relevant time period you may be prevented from ever bringing a claim.
Legal advice is therefore essential.
Victoria
In Victoria an adult has three years from the time
of injury or medical negligence was (discoverable) to issue proceedings.
Children have six years from the time of injury or medical negligence was
discoverable to ssue proceedings. The concept of (discoverability) is yet to be
fully defined by the Courts and accordingly it is prudent to be conservative
when judging the date of discoverability to have occurred, for example where the
negligent treatment involves an injury as a result of surgery undertaken in a
negligent fashion, a conservative assessment as to the date of injury would be
the date the surgery was undertaken, even where the negligence was not
discovered by the Claimant until some time thereafter. There may be
circumstances where you can apply to Court for an extension of time past these
time limits. The position will vary from case-to-case and you should obtain
legal advice about the time limits in your case.