There is a wide array of medical services provided by doctors including specialized or elective procedures.  With any healthcare procedure, there is a degree of risk.

Most cases involving medical malpractice are framed in negligence and battery.  Doctors can also be held liable for breach of contract in some exceptional circumstances.

In a doctor-patient relationship, the law implies that there is a contract in which the doctor promises to provide medical services to the patient by exercising reasonable care and skill.  This is known as an implied contract between doctor and patient.  In an elective cosmetic procedure, for example, there may also be an explicit contract entered into by the doctor and the patient setting out details about the cosmetic procedure and the risks.  The expected result (success) may also be included in the written contract or, in the alternative, it may be verbally guaranteed by the doctor.  If the guaranteed expected result is not achieved, then a claim may arise in both negligence and breach of contract against the doctor.

The leading case on liability of a cosmetic plastic surgeon (doctor) in both negligence and breach of contract is Lafleur v. Cornelis (1980) 28 N.B.R. (2d) 569.

In this case, the 25 year-old injured claimant consulted with the defendant plastic surgeon to reduce the size of her nose and to improve her breathing through a rhinoplasty.  The first interview with the doctor lasted about 10 minutes.  During that meeting, the injured claimant explained specifically what she wanted (a smaller nose).  The doctor drew a sketch on his notes to show the changes he would make for a fee.  He furthermore told the injured claimant that he would deliver the result she was seeking and that she would be “very happy” with the result.  The fee was paid and she underwent the rhinoplasty.  The procedure was not successful.  A scar or indentation was left on her nose in addition to other deformities which were considered permanent.  The injured claimant brought an action against the doctor in both negligence and breach of contract.

In relation to the claim for breach of contract, the court noted that the situation in this case involving a cosmetic surgeon is different than the ordinary physician.  The doctor was selling a special service and he, therefore, was more akin to a businessman.  The court found that there was no misunderstanding between the parties as to the contracted service.  The injured claimant paid the fee and the doctor was found to have failed to carry out his part of the contract.  The court found that the doctor made an express warranty of success in stating to the injured claimant – “no problem, you will be very happy” without explaining the risk. The court concluded that the doctor breached the contract because the procedure was unsuccessful and that he was furthermore negligent.

To review what steps to take after a medical malpractice incident, see our previous blog post.

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