How to report medical malpractice in cosmetic surgeries

The crime of injury caused by medical negligence in aesthetic operations is a subject of great importance in the legal and medical field. It is a crime that occurs when a medical professional fails to comply with the necessary duty of care in performing an aesthetic surgery and, as a result, the patient suffers injuries, physical damage, or even death. In this article we explain when and how to report medical malpractice after a cosmetic operation.

Healthcare providers have a duty to preserve and restore the patient’s health. And, although such an outcome is not always in their hands, there are standards in medical practice, from which a physician cannot unjustifiably deviate. Consequently, the professional who has not acted in accordance with the set of accepted medical practices for the practice of the profession must be held criminally liable.

In the case of cosmetic operations, the responsibility of the medical professional extends not only to the performance of the intervention itself, but also to the prior evaluation of the patient and adequate information about the risks and consequences of the operation. In addition, the physician must have the necessary training and experience to perform the operation safely and effectively.

This crime is regulated in article 147 of the Penal Code, in relation to article 152 of the Penal Code, which considers the crime of injury as the “causing of an injury that impairs the bodily integrity or the physical or mental health of another person”.

When medical malpractice occurs in a cosmetic operation, the patient can suffer a wide variety of injuries, from minor injuries such as swelling or scarring, to serious injuries such as infection, brain damage or even death. In many cases, these injuries may require additional treatments and corrective surgeries, which can significantly increase the patient’s medical costs and emotional suffering.

In order to appreciate the commission of medical malpractice, three elements must concur (STS of 13 February 1997): the existence of a damage, that this damage is a consequence of the malpractice of the health professional and there must be a causal link between the damage produced and the malpractice of the medical professional. Generally, in order to assess the malpractice and the causal link, it will be necessary to consult a medical expert.

When is there a medical malpractice case?

1. A voluntary action or omission in the professional practice that involves a breach of the objective duty of care that must be observed. The Supreme Court, in the Judgment of March 11, 1991, considered that the criterion is the correctness of the specific medical act performed by the medical professional, which takes into account the specific characteristics of its author, the profession, the complexity of the act and the vital transcendence for the patient and, if applicable, the influence of endogenous factors to classify said act as conforming or not to the normal technique used.
2. The conduct must result in an injurious, foreseeable and avoidable result so that, from a criminal point of view, liability can be demanded for the actions of the physician.
3. That there is a causal relationship between the action and the harmful result, there being different theories on this point.

Criminal liability for medical malpractice

In order to be liable for medical malpractice through criminal proceedings, it is necessary that the medical professional acts with fault or malice in his intervention with the patient undergoing cosmetic surgery. It will be understood that he has acted in this way when there is an intention to cause harm or acts with indifference to the risk of harm to a patient.

Normally, criminal proceedings are used in cases of death or serious and irreversible injuries caused by negligent actions of the medical professionals performing the cosmetic operation.

Likewise, the criminal process, in addition to compensation for the damages caused, provides especially for injuries committed by professional negligence, the request for the penalty of special disqualification for the exercise of the health profession for a period of 6 months to 4 years, fine and imprisonment, the latter being the provision that differentiates the criminal proceedings from the civil proceedings.

What serious reckless conduct gives rise to criminal liability?

1. Death of the patient: this is a crime of reckless homicide and is punishable by 1 to 4 years imprisonment with special disqualification from practicing the health profession for 3 to 6 years.
2. Injury affecting bodily, moral or physical integrity that does not require subsequent surgery: entails the imposition of a fine.
3. Injury affecting bodily, physical or moral integrity and requiring surgical treatment: carries a prison sentence of 3 to 6 months and disqualification from practicing the health profession for 1 to 4 years.
4. Loss of a limb or major body organ, loss of a sense, impotence, sterility, mutilation or bodily deformities: carries a prison sentence of 1 to 3 years and disqualification from practicing the health profession for 1 and 4 years.
5. Loss of a non-major limb or disablement of an organ: implies imprisonment from 6 months to 2 years with special disqualification from 1 to 4 years.

Finally, we must refer to the criminal liability of legal entities, among which are clinics or hospitals, which could be liable for the acts performed by physicians working in such health centers. In this sense, the lack of due compliance with the control obligations of the legal person may entail criminal liability for the organization itself if crimes are committed by its employees and for the benefit of the entity.

How is the procedure for claiming criminal liability for medical malpractice?

The procedure will be initiated through the filing of a complaint or lawsuit against the medical professional considered responsible for the crime of injury or homicide committed by medical negligence.

Once the complaint is admitted for processing, all the necessary investigative steps will be taken to clarify the facts and to be able to attribute criminal liability to the accused professional in a subsequent trial.

If you have suffered any of the above cases, know someone who has suffered something similar or do not know how to report medical malpractice, do not hesitate to contact Nieto Abogados Penalistas. What you need is a lawyer for medical malpractice. We are expert lawyers in criminal law, we travel all over Spain, Europe and the United Kingdom.