Acquiring a valid informed consent is an essential obligation of the healthcare professional and, although it applies to any medical act, assumes, if possible, an even greater importance in the field of plastic and cosmetic surgery. The first time to restore a pre-existing and damaged condition of physical integrity, and, in its context, it is customary to distinguish between reconstructive surgery, intended for the reconstitution of a part of the body – for example in the case of a mama. reconstruction after a mastectomy – and restorative surgery, aimed at repairing damage caused by trauma, a tumor or other causes.
There Cosmetic surgery, on the other hand, dedicated to the correction of physical aspects considered by the patient unpleasant or extremely limiting in the development of his social or work life, even if they are not a consequence of trauma or illness; are corrective interventions, e.g., lotoplasty, cosmetic rhinoplasty, breast augmentation and liposuction.
Changes in jurisprudence
Initially, in the legal field, the position of the cosmetic surgeon was different from that of other doctors and often in the event of incorrect execution, the liability and obligation to pay compensation were tempered by the unnecessary nature of the intervention. This conclusion was justified by the goal of achieving “mere beautification,” in the absence of a real disease. The patient, therefore, had to take the risk, in case of bad or unwanted results. This jurisprudential orientation, for many years, has completely changed and today the responsibility of the cosmetic surgeon is fully equated with that of other specialists. Therefore, in case of error, he is fully responsible for the damage caused and is called – both before and after the intervention – to fulfill a series of duties including the obligation to inform the patient and obtain consent for the intervention.
Informed consent must be based on detailed information, adequate to provide a complete knowledge of the nature, scope and scope of the medical-surgical intervention, its risks, achievable results and possible negative consequences. On the other hand, it is not considered appropriate for the patient to subscribe in a completely generic way, nor to detect the level of his studies, which affects only the modalities of the information, which must be adapted to the its cultural level through an understandable way. language. , according to the degree of specific knowledge that the patient has. In addition, the cosmetic surgeon does not provide adequate and comprehensive information to the patient not only when he or she does not fully report the nature of the proposed treatment, the associated risks, and the chances of success, but also when he or she acquires consent without effective understanding. of the patient. the patient.
Obligations of the surgeon
The information on the cosmetic procedure to be provided by the surgeon must be complete, understandable and specific.
The patient, in fact, has the right to know, with the necessary and reasonable precision, the consequences of the intervention in order to prepare to face them with the utmost and best awareness. Informed consent, in fact, is an expression of conscious adherence to the medical treatment proposed by the physician and is configured as a real right of the person based on constitutional principles. The obligation of the healthcare professional to obtain the informed consent of the patient therefore constitutes the legitimacy and basis of the healthcare treatment, since, without its prior acquisition, the intervention is certainly illegal, even if it is done in the interest of the healthcare professional. patient. Failure to comply with the obligation assumes an autonomous relevance for the purposes of the surgeon’s liability in matters of compensation, since, although the incorrect execution of the medical-therapeutic treatment causes damage to the right to health, the breach of the obligation to obtain informed consent. determines the violation of the different fundamental right to self-determination of the patient.
The purpose of the obligation is to provide information, in addition to the nature of the intervention, also of the scope of the possible and probable achievable results, of the foreseeable consequences of the proposed treatment and, in particular, of the possibility of aggravation of the patient’s health conditions., in order to put the latter in a position to consciously consent to his own treatment, or to deny or postpone it. These elements of information must, in fact, allow the patient to: a) consciously choose the different medical treatment options; b) obtain, if necessary, other opinions from other health professionals; c) resort to another healthcare professional and another structure, which offer greater and better guarantees (in percentage terms) of the desired result, possibly also in relation to the postoperative consequences; d) reject the intervention and / or consciously decide to discontinue it; e) To prepare to consciously face the consequences of the intervention, when these result, at a postoperative and rehabilitative level, especially severe and omens of foreseeable suffering.
The possible consequences
When informed consent is not given legitimately, according to the Supreme Court, the following scenarios can be given: 1. Information omitted in relation to an operation that has caused damage to health by negligent conduct of the doctor, to whom the patient, in any case, would have chosen to submit under the same conditions: in this case, the compensation will be limited only to the damage to the health that the patient suffers, in its double component, moral and relational; 2. Information omitted in relation to an operation that has caused damage to health due to the negligent conduct of the doctor, to which the patient would have chosen not to submit: in this case, the compensation will also be extended to damages caused by the violation of the the patient’s right to self-determination; 3. Information omitted in relation to an intervention that has caused damage to health due to the non-negligent conduct of the doctor to whom the patient would have chosen not to submit: in this case, the compensation will be paid in reference to the infraction. of the right to self-determination, while the injury to health will be assessed in relation to the differential situation between the result of the intervention and the (in any case pathological) previous to it; 4. Information omitted in relation to an intervention which has not caused damage to the patient’s health and which has been carried out correctly: in this case, the violation of the right to self-determination will be subject to compensable damage whenever the patient has suffered unexpected consequences of the intervention, without the necessary and conscious predisposition to face them and accept them, without being fully prepared for them.
The cosmetic surgeon also wears another obligation to inform: to advise against the intervention, when it is considered useless or pejorative. The information load in cosmetic surgery, in fact, is more specific and rigorous, since the decision to undergo the operation derives from a mere desire of the patient and not from a state of illness. The patient must therefore be informed not only of the risks and possible consequences of the operation, but also of the percentage, as accurate as possible, of success and achievement of the desired result; for this reason, even the professional performance of a surgical procedure, for which the patient has not been informed about the possible formation of scars, constitutes a breach of the information load and determines the obligation to compensate for the damage. caused to the patient. .
*Lawyer Antonio Serpetti author of Giuffr Francis Lefebvre
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