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2023-12-01

| Medical Dispute | Duty of Explanation by Physicians during Cosmetic Surgery Procedures

In today's society, cosmetic medical procedures are becoming increasingly popular, with more people opting for various aesthetic surgeries to achieve their ideal appearance. However, these procedures are not without risk and involve a series of medical ethics and legal issues, the most critical being the duty of explanation by the physician.

 
 

【Medical Regulations】

According to Article 64 (1) of the Medical Act, "Medical institutions performing invasive examinations or treatments specified by the central competent authority shall explain to the patient or their legal representative, spouse, relative, or related person and obtain their consent and signed agreement before proceeding, except in emergencies." Also, Article 81 of the Medical Act and Article 12-1 of the Physicians Act contain similar provisions. Given the highly specialized and risky nature of medical treatment, which directly affects the patient's health or life, patients or their families usually rely on the physician's explanation to understand the necessity, risks, and effects of the medical action. Thus, when performing medical actions, physicians should adequately explain to the patient or their relatives, and proceed only after obtaining their consent, to safeguard the patient's right to bodily autonomy.
 

【Case Background】

Our client sought to improve facial shape and forehead wrinkles and was injected with botulinum toxin by a physician employed at a cosmetic clinic in 2016. However, the employed physician failed to fully inform the client about possible complications and risks, such as local muscle spasms, associated with the botulinum toxin injection. The injections were administered in the masseter, forehead, chin, and lateral cervical muscles using Botox (Type A botulinum toxin). This led to muscle stiffness, difficulty in speaking and swallowing, and stiffness around the lips lasting for six months, causing the client to seek our help.

 

【Court Decision: Victory for the Plaintiff】

Our study found that the duty of explanation by physicians includes:
 
  1. Any mentally competent adult has the right to decide whether to accept a specific medical procedure.
  2. Patient consent is predicated on sufficient information and explanation.
  3. Before obtaining patient consent, physicians are obligated to explain all information that significantly impacts their decision.
Specifically, the physician's duty of explanation should at least include:
 
  1. Diagnosis, condition, recovery, and consequences of refusing treatment.
  2. Recommended treatment and alternative options with their pros and cons.
  3. Treatment risks, common complications, and side effects, including rare but severe risks.
  4. Treatment success rate (mortality rate), hospital facilities, and physician's expertise.
However, in cosmetic medical treatment, practice considers that "cosmetic surgery differs from general medical treatment. Patients are not in immediate life-threatening danger and usually seek cosmetic procedures based on subjective expectations rather than treatment of a disease. Due to the lack of urgency and necessity in medical actions in cosmetic treatments, the decision to undergo treatment solely rests with the patient. Therefore, physicians performing cosmetic treatments, besides explaining the method, effects, and side effects before treatment, should also provide detailed information necessary for the patient to decide on undergoing the surgery. This includes the potential for scars, duration and appearance of scars, and other significant factors affecting the patient's decision. If a physician fails to fully explain and the patient rashly accepts cosmetic surgery, resulting in objectives not being met, the physician should bear the liability for non-performance of duty or infringement of the patient's right to choose, including compensation for damages."
 
Ultimately, our client, after appointing us, filed for damages against the clinic and the employed physician. The lawsuit lasted over two years, resulting in a favorable judgment.
 
 
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