Santa Ana, CA asked in Medical Malpractice and Consumer Law for California

Q: Plastic Surgeon Refusing to Return $15,000 Payment Despite Surgery Not Taking Place

I received a quote for a cosmetic procedure during a consultation and signed a document acknowledging all procedures are non-refundable.

I was scheduled for surgery only 6 days prior to the operation and was hastily asked to pay the full balance ($15,000). I did. After that, I received the informed consent documents (about 3 days prior to the operation). Upon reading them, I realized there were a myriad of risks that had not been shared with me in any of my prior appts with the surgeon-- namely the procedure I was to undergo is THE MOST LETHAL cosmetic procedure in the United States by total fatalities and is BANNED in the UK due to the government's belief that the surgery is too risky to be performed safely. When I asked the doctor about risks in prior appointments, he only discussed the risk of infection.

Mere hours after the documents were sent over, I promptly canceled the surgery and requested a refund. The surgical center is refusing to give me my money back. What can I do?

1 Lawyer Answer
Maurice Mandel II
Maurice Mandel II
  • Consumer Law Lawyer
  • Newport Beach, CA
  • Licensed in California

A: This is a terrible situation for you. Nothing is truly "NON REFUNDABLE" The first thing I would do is to send a letter that clearly states you are "RESCINDING" the contract with the surgeon, ASK FOR A RETURN OF YOUR MONEY.

The amount you are owed exceeds the $10,000 limit of Small Claims or you could go there but you can still go to SC but you must waive the excess over $10,000.

You need to read what you signed, if there is an attorney's fee clause, that goes both ways. Superior Court has a "limited jurisdiction" department for cases under $25,000.00 and things there are streamlined but not as consumer friendly as SC. You should have an attorney in Limited.

IMO the surgeon cannot just keep your money and not provide you with any services. The law does not allow that.

Contract Law—Rescission and Restitution

Rescission of a contract terminates liability and restores the parties to their former positions by requiring each party to return any benefit received under the contract. CC §1692. The effect of a rescission is to extinguish the contract. CC §1688. The rescinding party is entitled to restitution.

When faced with a party who has rescinded a contract, first determine whether the rescinding party’s election to rescind was justified, i.e., did the rescinding party have proper legal justification for rescinding, and second, adjust the equities between the parties by granting to each party the relief to which that party is entitled. CC §1692.

Grounds for rescission include the following:

Fraud (CC §1689(b)(1)), POSSIBLE

Mistake or misrepresentation (CC §1689(b)(1)), THIS ONE APPLIES TO YOU

Restitution is a remedy for rescission. In other words, the rescinding party is entitled to restitution of the consideration given to the other party.

The opinion above is based on the facts contained in the question without independent investigation. Additional facts could substantially change the opinion. DO NOT RELY ON FEE LEGAL ADVICE OFFERED IN PUBLIC FORUMS, CONSULT WITH AN ATTORNEY OF YOUR CHOICE FOR YOUR IMPORTANT PERSONAL RIGHTS.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.