I had a cosmetic procedure performed by a plastic surgeon. However, things did not turn out as my doctor promised. Without being too specific, I was promised one result but I feel like he only made things worse. He also told me after the procedure that the type of bad result I had was a risk of the procedure. He did not tell me of the outcome that occurred. Do I have a case against my doctor for not warning me of this possible risk?
You may have a claim under New York Law for a case of failure to obtain informed consent, which is a type of malpractice case. NY Public Health Law section 2805-d. If your doctor did not disclose all of the risks associated with your particular procedure that a reasonable doctor would have disclosed, then you could have a claim. You would also need to show that if a “reasonable patient” in your circumstances had known all the risks, then that “reasonable patient” would not have undergone the procedure.
Objective Standard
There is an objective standard that a jury must apply to these questions. It is not sufficient for you to testify that you personally would not have had the procedure. The standard is a “reasonable patient” in your circumstances.
Consent Form
Also, many times physicians routinely have patients sign a consent form. You may have signed such a form even if you do not remember signing it. A signed consent form from the patient does not necessarily mean the doctor will dismiss your case.
If you signed a consent form, it must be specific. It is not sufficient to have a boilerplate consent form where the doctor just lists the part of the body on which he operated. Preciado v Ravins, 190 AD3d 991 (2d Dept 2021). But if you did sign a consent form which specifically lists the procedure and the risks, then you might not have a case.
Affirmative Defenses
There are two other defenses to a lack of informed consent that you may also consider. If a patient assures the doctor that they are going to undergo the procedure no matter what the personal risks, then there would be no claim against the doctor. Secondly, if the risk not disclosed is too commonly known to warrant disclosure, then this is also a defense for the doctor.
Since you were not specific about the procedure or your damages, it is impossible to say if you do or do not have a case.
By James Santner, Esq.
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