The rise of aesthetic plastic surgery has increased over the years, and today, multiple advertising campaigns for aesthetic plastic surgeons can be observed in various media outlets. This suggests that aesthetic plastic surgery is becoming a social phenomenon inherent in current culture.
Despite its social acceptance, there is still discrimination and ignorance about this field. It is often read or heard that aesthetic plastic surgery only seeks to enhance people’s appearance and that those undergoing these surgical interventions do so solely to satisfy their ego and pursue beauty. It is also common to assume that the doctor is obligated to achieve a satisfactory result for the patient, and that there should be no complications in these surgeries. These opinions have been arbitrarily exploited by the media when presenting a situation related to aesthetic plastic surgery, discrediting the doctor’s actions and the procedure performed without any knowledge, a scenario not seen in any other health specialty.
Unfortunately, this negative judgment towards aesthetic plastic surgery is not exclusive to certain social sectors and media outlets. There are also lawyers and judges in the judiciary responsible for constructing law objectively, responsibly, and justly, who mistakenly conceive it only from the perspective of a results obligation. This overlooks the importance of the doctor-patient contract, informed consent, and the numerous legal precedents on the subject.
Over time, the position of the civil cassation chamber has evolved. It has been established that aesthetic doctors acquire means obligations unless different commitments are made by the professional. If the intervention aims to correct a physical defect and a specific result has been assured, the doctor will be considered guilty and liable for compensation to the patient if that result is not achieved, provided there are no grounds for exoneration such as force majeure, fortuitous event, or the fault of the affected party. If a specific result is not assured, the rules of liability will be general regarding negligence. (CSJ in Judgment of November 26, 1986).
Jurisprudence has undergone changes over time. In 2017, the Supreme Court of Justice delved into the topic, emphasizing the importance of conceptualizing the obligation that the healthcare professional assumes in aesthetic plastic surgeries. It pointed out that the predominant criterion is means obligations, especially when the legal framework in Law 1438 of 2011, article 104, determines it as such, and therefore proven negligence, with the burden on the plaintiff to demonstrate medical error, negligence, or incompetence. However, in exceptional cases, presumed negligence occurs when medical failures are evident due to the non-achievement of a result, in which case the element of negligence is presumed. (CSJ, SC-7110/17, 2017).
In the same ruling, the Supreme Court of Justice highlighted the randomness of the goals set in the surgical intervention, depending on the degree of occurrence. They stated that if the doctor sets a specific goal, as is often the case in aesthetic interventions, recognizing its degree of uncertainty, it is understood that they have some control over the process. In this case, the doctor’s conduct must be sufficient to achieve the expected result, and they would be obliged to fulfill the promised service. However, if the doctor’s commitment is limited to applying their professional and scientific knowledge, recognizing that the result depends on external factors beyond their control, then the obligation will be one of means. (CSJ, SC-7110/17, 2017).
As a result of the above, it can be highlighted that the qualification of the obligation, whether means or results, in aesthetic plastic surgery depends on the contract that the doctor establishes with their patient. If the doctor commits to achieving a specific goal without knowing the degree of uncertainty, they are obliged to fulfill that promised result. On the other hand, if their agreement is limited to providing their knowledge diligently and carefully, recognizing that the result depends on external factors beyond their control, then the obligation will be one of means.
Starting from the understanding of the importance of the doctor-patient contract as the central point for determining the nature of the obligation of the aesthetic plastic surgeon, we proceed to analyze the legal act.
Law 23 of 1981, a norm on medical ethics, in its article 1, numeral 4, considers the doctor-patient relationship as the “primary element in medical practice.” That is, the doctor-patient contract arises from this relationship, in which the obligations assumed by the doctor are established. This relationship must be based on trust, respect, and, above all, professional discretion. Additionally, article 5, numeral 1 of this law states that the “voluntary and spontaneous decision of the parties” is also part of this contract.
Thus, the scenario in which the doctor-patient relationship is specified is the contract, which, according to article 1495 of the Civil Code, is an act in which “one party undertakes to give, do, or not do something for the other,” and according to article 1602 of the same legal body, constitutes a “law for the contractors and can only be invalidated by their mutual consent or legal causes.” In other words, this element, the contract, is a legal act or transaction that arises as a reflection of the will of the parties involved, and its specific objective is to obtain legal consequences that obligate them to fulfill what was agreed upon.
Regarding the responsibility of the doctor in aesthetic surgeries, the Supreme Court of Justice issued a judgment on May 24, 2017, considered the most recent pronouncement on the topic. In this judgment, the importance of identifying the content and scope of the medical services contract between the doctor and the patient is emphasized. This contract determines the duties assumed by the doctor and, consequently, the burden of proof in establishing their responsibility, especially regarding negligence, highlighting the legal regime established in article 1604 of the Civil Code (CSJ, SC-7110/17, 2017).
In conclusion, the obligation assumed in aesthetic plastic surgeries is an obligation of means, as in any other medical specialty, as long as it has not been committed to obtaining a specific result within the doctor-patient contract.
Olga Milena Martínez Laguna
Manager, Clínica Alejandría SAS
