Perceptions of injuries are culturally mediated, mutable, plastic. In tort litigation, however, the cultural plasticity with which we perceive and experience injuries is often ignored. This Article explores the cultural plasticity with which we perceive injuries through the lens of plastic surgery litigation. It argues that determinations of injury in plastic surgery litigation turn on the culturally biased — and highly mutable — perceptions of medical professionals. More broadly, the Article argues that culture shapes perceptions of injuries in tort litigation as a whole. To make these points, the Article examines a prototypical plastic surgery case and surveys a range of historical and empirical analyses of injuries in tort litigation, which illustrate the cultural plasticity of injuries in tort practice.
The Article recommends adopting a more complex approach to injuries that takes cultural biases into account. It expresses particular concern about the privileged role of doctors in tort litigation because they play a key role in shaping cultural perceptions of injuries. While this is problematic in many tort cases, it is particularly problematic in plastic surgery litigation where plastic surgeons act as both purveyors of the cultural demand for plastic surgery, and arbiters of any injuries that may result.
Bloom, Anne, Plastic Injuries (March 19, 2014). Hofstra Law Review, Vol 42, No 759, 2014.