To read Article 1 in this series, 'Cosmetic surgery injury back under the knife', please click here.
The recent Four Corners report regarding dermatologist turned cosmetic surgeon, Dr Daniel Lanzer, shed light on allegations of concerning practices occurring in his network of clinics and day hospitals located across Australia.1 Such allegations have included hygiene and safety breaches, as well as procedures that patients say have left them with ongoing physical and psychological injuries.2
The discoveries brought to light by the programme have led the Australasian College of Cosmetic Surgery and Medicine, the peak body for cosmetic surgeons, to launch an investigation into Dr Lanzer and what they deem to be his 'completely unacceptable practices'.3
An investigation has also been commenced by the Australian Health Practitioner Regulation Agency. In the context of these investigations, Dr Lanzer recently provided a legally enforceable undertaking to the Medical Board of Australia to stop practising as a medical practitioner. The duration of Dr Lanzer's undertaking is uncertain, however the Medical Board recently made a statement advising that its 'enquiries in relation to Dr Lanzer are ongoing'.4
While cosmetic surgery is to be distinguished from specialist plastic surgery, as outlined in Article 1 of this series, it still carries with it many potential risks. The Four Corners report featured the experiences of a number of former patients who said they had obtained poor outcomes following procedures they said were performed by Dr Lanzer and/or members of his staff.
One such patient was Donna Patterson who, in 2005, was successful in obtaining an award of damages against Dr Lanzer and his company following the performance of a liposuction of the breasts procedure that she said caused extreme pain, cysts, excessive tissue production in the breasts, impairment and an incapacity for work.5 She said she was also required to undergo corrective surgery.
A standard of care for professionals
Whether they are a plastic surgeon or a cosmetic surgeon, all medical professionals are required to meet a standard of care, which if they fall below, may give rise to a claim in negligence against them.
However, not all those who have obtained unsatisfactory outcomes following procedures performed by cosmetic surgeons would necessarily be successful in bringing a claim in negligence.
Section 5O of the Civil Liability Act 2002 (NSW) sets out the provisions that need to be applied and satisfied in order for a plaintiff to successfully bring a claim in negligence against a medical professional.
The provisions of section 5O provide that a professional won't be found to be negligent if they 'acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice'.6 It is important to note that while such peer professional opinion can vary and doesn't need to be universally accepted to be considered widely accepted,7 it cannot be relied upon if the court considers the opinion is irrational.8 The negligence or otherwise of a medical professional is determined on the basis of expert medical evidence.
If a professional such as a cosmetic surgeon is ultimately found to have been negligent in the provision of its services, the plaintiff would be entitled to recover damages for loss suffered. Such damages may include:
- Non-economic loss (pain and suffering);
- Past and future economic loss;
- Past and future medical and related care expenses.
1'Shocking practices exposed in Australia's cosmetic surgery industry', Four Corners (ABC, 2021).
4 'Medical Board accepts undertaking not to practise from Dr Lanzer' AHRPA (30 October 2021) https://www.medicalboard.gov.au/News/2021-10-30-MBA-accepts-undertaking-from-Dr-Lanzer.aspx
5 Lanzer & Anor v Patterson (2007) 18 VR 442
6 Section 5O(1)
7 Section 5O(3)-(4)
8 Section 5O(3)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.