[ad_1]
FIND OUT MORE ABOUT CIVIL LIABILITY
One patient went to a private clinic to undergo a breast augmentation procedure. She had “tuberous” breasts; a peculiar morphology but not at all pathology that required surgery for health reasons.
The patient stated that, one week after the surgery, she was informed that, due to the morphology of the breast, it was not possible to implant a round but anatomical prosthesis. The patient also reported that no mammography was done prior to surgery, just an EKG and laboratory tests. The patient, on the other hand, considered informed consent insufficient, since it did not include a risk or a major complication due to the morphology of the breast.
She undergoes surgery, consisting in the implantation of breast implants, without any incidence during the operation. In the postoperative period she did not present any complications, only the patient’s regret for having made the incision through the areola and not through the lower pole, as she wished.
During the reviews carried out in the weeks and months following the surgery, no complications or incidents were observed.. Five months later, the patient observed strangeness in the right prosthesis; It was dropped and formed a circle around the lower pole of the chest. In addition, he had chest pain, in the area closest to the armpit.
The patient went to another doctor for a second opinion, who determined that the right prosthesis had fallen out of his pocket. After performing an ultrasound scan of both breasts, she observed a tear in the pectoral muscle, suggesting a breast lift procedure for breast reconstruction due to this complication.
Given this, the patient filed a lawsuit against the clinic and the doctors who intervened in the first surgery, alluding to lack of information, neglect, lack of results, insufficient preoperative tests and physiological, psychological and aesthetic damage as a result of negligence.
Satisfactory medicine vs. Curative medicine: what obligations does the doctor have?
The defendant’s defense argued that the patient had a type of breast called “pseudoptosis” (sagging breast), which is why it was decided to implant a prosthesis to achieve a certain elevation of the breasts, choosing the anatomical ones as their most suitable for the morphology of the patient, as she insisted on wanting large breasts but with the most natural appearance possible. Likewise, it was emphasized that ultrasonography was not required to decide which type of prosthesis to implant, a test that is not performed in patients with no previous pathology. The accused defended that the first intervention was carried out without incident and always acting in accordance with the lex artis.
After analyzing the arguments of both parties, the judge concluded, with reference to the sentence of the Court of Cassation of 25 April 1994, that the contract that binds the patient with the doctor under his care must be considered as a rental of services, for the fact that both the mortal nature of man and the insufficiency of medical science for the treatment of some diseases, together with the fact that not all individuals react in the same way to the treatments available to current medicine, although they are effective for the generality of patients, which prevents us from considering the contract as an employment contract, which obliges the achievement of a result. This qualification as a lease of services also transfers to cases of voluntary medicine, although the contract, without losing its character of leasing of services – which imposes on the doctor an obligation of means and not of results – is similar to that of leasing of services. work, that’s why the requirement for a greater guarantee is added.
This distinction is essential to establish the liability of doctors, since, in case of obligation of means, it is an essential requirement to prove causation and disproportionate outcome.However, in the event of a result obligation, it would be sufficient to prove the lack of the expected result.
For all these reasons, the judge rejected the request, unable to prove that the defendant doctors acted through negligence and against the lex artis. In addition, the patient was informed of the risks and complications and the possibility of not achieving the desired result, requiring additional surgery.
Further information: http://www.lexsanitaria.com/
Source link
