Consent forms signed by patient modified doctor's contractual assurances, court says
The Nova Scotia Small Claims Court has dismissed a claim seeking to hold a plastic surgeon liable for failing to follow through with his assurances that the procedures performed upon the patient would give her a flat stomach.
The defendant in this case was a plastic surgeon who operated a private medical clinic. In 2021, he performed surgery to remove excess skin from the arms of the claimant, who considered this procedure successful and satisfactory.
In March 2023, the defendant met again with the claimant, who expressed her goal to have a flat stomach through the removal of excess skin and fat. He examined her and recommended three procedures: a tummy tuck, a mons lift, and a liposuction. Before the surgery proceeded in November 2023, he made her sign a consent form for each of the three procedures.
The forms, developed by the defendant’s clinic, included the following statement: “I understand the practice of medicine and surgery is not an exact science and I acknowledge no guarantees have been made about the result of the operation and procedure planned.”
In the present case, the claimant alleged that a contract arose when the defendant assured her that he could give her a flat stomach and that she would not have moved forward with the operation without this assurance. She argued that he breached this contract when the surgery failed to achieve her desired result. In response, the defendant applied for a non-suit.
In Derocher v. Boileau, 2024 NSSM 92, the Small Claims Court of Nova Scotia dismissed the claim against the defendant surgeon. First, the court acknowledged that the parties formed an oral contract regarding the expected results before the day of the surgery. The court accepted that the defendant agreed with the claimant that the operation would give her a flat stomach.
However, the court ruled that the clear language of the consent forms modified the defendant’s contractual assurances and negated any promises or guarantees that he made in connection with the surgery’s outcome.
The court also dismissed the claim against the clinic. The evidence failed to establish any liability for legal impropriety and failed to address the nature of the relationship between the claimant and the clinic though the price quote did come from there and though the operation did take place within its premises, the court said.
