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Personal Injury

Claims for cosmetic procedures 'gone wrong' on the rise

Medical malpractice claims involving cosmetic procedures are unique and often challenging to pursue, Toronto personal injury lawyer Jessica B. Mahabir tells AdvocateDaily.com.

Mahabir, a lawyer with Derfel Injury Lawyers, says her firm’s Professional Negligence & Medical Malpractice group is seeing a growing trend of personal injury claims for negligent laser hair removal, plastic surgery, injectables and other cosmetic procedures.

“We’ve seen situations where Botox or a breast augmentation surgery has gone wrong,” she says. “Some injuries can be minor while others are painful or life-threatening. A botched procedure can lead to depression, anxiety and loss of self-esteem, in addition to physical pain and suffering.”

She says these claims are unique because the procedures are elective.

“You’re not being rushed to the ER for a life-saving emergency surgery,” Mahabir says. “Because of this, I would argue plastic surgeons should be held to a higher standard because they have an obligation to fully explain these procedures to prospective patients. What we’re finding is many times, they don’t.”

She says these cases are further complicated by the financial relationship involved.

“Patients are paying doctors to do these procedures, whereas an ER surgeon is getting paid by OHIP. There is a financial incentive involved when a doctor is billing privately,” Mahabir says.

As with any medical or cosmetic treatment, there are risks involved. Negligent care or treatment can leave the patient with bruising, scarring, nerve damage and poor superficial results.

“Many medical malpractice lawyers will not touch cosmetic procedures because the reverse side of the argument is that patients knew the risks and went ahead anyway,” she adds.

It can be difficult to prove damages in these cases, especially if poor results are mostly of a subjective nature. However, Mahabir says there can be an assumption that those who undergo cosmetic enhancement procedures, the majority of whom are women, are doing so for vain or narcissistic reasons and should therefore accept the consequences.

“Defence counsel, especially if they’re male, tend to minimize these procedures as superficial,” she says. “But negligent treatment can have a huge impact on someone’s life."

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