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20 years ago, convinced that she was going to suffer the same fate as her daughter, who a week before had undergone surgery with Victor Hugo Carrillo García, a woman decided to go to the same plastic surgeon to get liposuction done.
Surgery started at 7:30 a.m. and the patient left the procedure at 4:00 p.m.. After the intervention, he began to feel abdominal pain, his face turned pale, which made him suspect that something was not right.
Three days after the intervention they found the cause of the problem: in liposuction they had perforated his intestine several times, which eventually led to her dying a month after having surgery.
The woman, who worked as a tax chief for the Government of Cesar, died at the age of 50, on February 11, 2000.
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For those facts Víctor Hugo Carrillo García was sentenced in 2009 to pay 200 million pesos for the material and moral damages that the family suffered due to the death of their loved one.
Twenty years later, the Civil Cassation Chamber of the Supreme Court of Justice has just confirmed the civil conviction against the surgeon, but made some changes and also made several clarifications on how far the responsibility of cosmetic surgeons goes in this type of intervention.
First, the Court noted that the general rule is that the obligation of physicians, even if they are cosmetic surgeons, is one of means and not of results. What does that mean? What are required to develop the best methods, to have the best capabilities, and to comply with all the requirements for a procedure or treatment to go well, but as there may be external factors or unforeseeable medical uncertainties that alter the process they are not obliged to guarantee concrete results.
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In this framework, to get a doctor to be civilly convicted of a bad procedure, the person who sued must demonstrate, in addition to the damage to life or health, that the doctor did not have the required training, failed to do the necessary checks based on symptoms, acted carelessly or recklessly when performing a procedure, or did not follow the rules of medicine.
(Read also: Cosmetic surgeons should not always guarantee a good result).
However, that rule has an exception. And, according to the Court, if a surgeon freely and autonomously commits himself to guaranteeing a result, because he considers that he is able to control external factors and reaches that specific pact with his client, he could be sentenced for not achieve that goal.
And eThis is what happened in the case of the Valledupar patient, because according to the evidence collected by the Court, In the same free version that surgeon Víctor Hugo Carrillo delivered in 2001 to the Prosecutor’s Office, he pointed out that he performs cosmetic surgeries “to satisfy the patient’s expectations.”
This is how, says the Court, Carrillo not only guaranteed to put his knowledge and experience at the service of improving patients “but also assumed the burden of pleasing the aesthetic interest of those intervened”, which means that his obligation was result.
He forced himself with his patient to achieve his physical beautification, through the reduction of the adipose tissue located in his abdominal area, which is typical of an obligation of result
Further, Taking into account another interrogation that the doctor presented in 2005, the Court concluded that he forced himself with his patient to “achieve their physical beautification, by means of the reduction of the adipose tissue located in their abdominal area, which is typical of an obligation of result”.
However, the Court found that the woman I had a spiegel hernia that was very difficult to detect and which ended up being an unforeseen situation, of force majeure, for the medical personnel, for which it cannot be said that what led to his death was the action of the surgeon, and exonerated him of tort liability.
On the other hand, regardless of whether the obligation is of means or results, when a cosmetic surgeon does not inform the patient of the normal or foreseeable risks that he or she assumes in a procedure or the treatment alternatives, You are also obliged to bear the consequences for having omitted that information.
Instead, if the surgeon correctly and openly reports the risks, even when you have committed to a certain result, your responsibility can be decreasedTherefore, accurate information is very important in these cases.
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With all this, the Civil Chamber of the Supreme Court of Justice condemned surgeon Víctor Hugo Carrillo García, and declared him civilly and contractually liable for the damages caused to the woman who died after liposuction, for which she will have to pay 90 legal monthly minimum wages, divided equally, to four of her relatives.
Instead, it freed him of tort liability when he found that he could not foresee the situation due to the spiegel hernia.
JUSTICE DRAFTING
Twitter: @JusticiaET
