The Law
Malpractice is defined as “treatment which is contrary to accepted medical standards
and which produces injurious results in the patient.”
Usually the “failure” of the defendant and/or physician to exercise the reasonable
degree of skill, learning, care, and treatment ordinarily possessed by others of the
same profession in the community.
Dealing with the risky patient
Effective Communication
All litigation in plastic surgery has poor communication as a common denominator.
Often marked by impressions of surgeon's arrogance, hostility, coldness (real or
imagined), and, mostly, by the fact that “he or she didn't care.”
Only 2 ways exist to avoid such a debacle:
(1) ensuring that patients have no reason to feel that way
(2) avoiding patients who are going to feel that way no matter what the outcome.
Have strategies to defuse patient anger. Recognise that anger is often a defensive
reaction to fear. Offer understanding, support, and encouragement.
Discussion of risks:
Affirmative duty means that the physician is obliged to disclose risks on his or her
own, without waiting for the patient to ask.
It is the patient's—not the physician's—prerogative to determine what is in his or her
best interests. Thus, the physician is legally obligated to discuss with patients
therapeutic alternatives and their particular hazards in order to provide a sufficient
basis of information for patients to decide what is in their best interest.
How much explanation and in what detail they are given are dictated by a balance
between the surgeon's feelings about his or her patients and the applicable legal
requirements. It is simply impossible to tell patients everything without scaring them
out of surgery. Rather, the law states that patients must be told the most probable of
known dangers and the percentage of that probability. The rest may be disclosed in
general terms while reminding the patient that he or she also has a statistical
possibility of falling down and hurting themselves that same day.
Accurate Documentation
Any discussed information is wasted unless it is documented in the patient's record.
For legal purposes, if it is not in the record, it never happened.
Patient Selection
Unlikely candidates are those with
1) anatomic unsuitability
a. degree of deformity
b. medical problems – smoking, anticoagulants, steroids, diabetes
2) psychological inadequacy.
Those with major deformity and minor concern do best as opposed to those with
minor deformity and major concern.
Strength of motivation is critical because it has a startlingly close relationship with the
patient's postoperative satisfaction level.
A strong, motivated patient has less pain, a better postoperative course, and a
significantly higher index of satisfaction regardless of result.
Realistic Expectations
Important that the surgeon provides realistic expectations to the patient.
Beware ‘brag books’ – showing off good results only
Where computer imagery is used, qualify that this is a simulation only. If possible,
also show imagery of complications or present results in good but not stellar results.
Indicators of a future malpractice claim
1) High expectations
2) Excessive demands
3) Indecisiveness - The more the decision to undergo surgery is motivated from
within and not “sold,” the less likely that recriminations will follow an
unfavorable result.
4) Immaturity
5) Secretiveness
6) Familial disapproval
7) Personal dislike
8) Surgiholism
Common procedural lawsuits
Breast augmentation
Unquestionably, the loss leader in any medical liability carrier's plastic surgery loss
experience is breast surgery, both augmentation and reduction. Of these 2 categories,
augmentation is by far the greater. Approximately 44% of all elective aesthetic
surgery claims involve augmentation. Momentarily setting aside the hotly debated
issue of gel-filled devices causing autoimmune disease, the main complaints have
been as follows:
1)
2)
3)
4)
5)
Encapsulation with distortion and firmness
Wrong size (whether too large or too small)
Infection
Repetitive surgeries and attendant costs
Nerve damage with sensory loss
Breast reduction
1) Unsatisfactory scar
2) Loss of nipple or breast skin cover and consequent need for revision/grafting
3) Asymmetry and/or disfigurement
Scarring
It is imperative that the plastic surgeon obtains clear evidence that the patient realizes
there is no healing without scarring..
Rhytidectomy and blepharoplasty
Rhytidectomy (ie, face-lift) and blepharoplasty account for approximately 11% of
claims.
1)
2)
3)
4)
5)
Excessive skin removal resulting in a “scary” appearance
Dry eyes and/or inability to close eyes
Nerve damage resulting in distorted expression
Skin slough resulting in excessive scarring and the need for revisional surgery
Cost of additional revisional surgeries (as in evacuation of an expanding
hematoma)
Beware outpatients
In a survey of blindness after blepharoplasty performed some years ago, researchers
discovered that the only trait all patients had in common was that they were
discharged shortly after the outpatient procedure. Upon arrival at home, all did
something (eg, constipated bowel movement, sudden coughing fit, bending over and
reaching down to tie shoes) to generate a sudden rise in blood pressure at the time of
maximal reactive hyperemia as the epinephrine in the local anesthetic wore off.
All patients undergoing outpatient surgery involving undermining of heavily
vascularized tissues must be strictly warned to avoid maneuvers that generate sudden
elevations in blood pressure (ie, Valsalva-type maneuvers). Additionally, it is strongly
recommended that no patient be discharged from an outpatient surgical facility until at
least 3 hours have elapsed and all local anesthetic effects have worn off.
Rhinoseptoplasty
This category of cases constitutes approximately 8% of claims.
1)
2)
3)
4)
5)
Unfulfilled expectations
Unsatisfactory result (improper performance)
Continued breathing difficulties
Asymmetry
Cost of revisional surgery
Abdominoplasty
Abdominoplasty, with or without suction-assisted lipectomy, comprises
approximately 3% of claims.
1)
2)
3)
4)
Skin loss with poor scars
Nerve damage
Inappropriate operation
Infection with postoperative mismanagement
Undoubtedly, the combination of suction-assisted lipoplasty and abdominoplasty has
significantly increased morbidity. A much higher percentage of skin sloughs clearly
occurs in procedures preceded by suction-assisted lipectomy.
Skin resurfacing
Chemical peels and laser resurfacing constitute the next category of claims, at
approximately 3%. The principal allegations are as follows:
1) Blistering/burns with significant scarring
2) Infection/postoperative mismanagement
3) Permanent postoperative discoloration
Because of the unpredictability of individual healing characteristics, it is probably a
good idea to try a test patch in an area that can be hidden, such as the back of the
neck. The documentation preceding this operation should contain clear warnings that
quality of healing is linked to individualized genetic characteristics and cannot be
predicted. The operator must make it clear to the patient that final color and texture
determinations are not always in the hands of the surgeon and heavy makeup may be
needed for an indeterminate period of time
High-volume liposuction
Any amount above 5000 cc of extracted fat constitutes high volume. More
importantly, the extraction of this amount of fat causes profound physiologic changes,
which can then lead to severe complications and/or death. The infusion of large
amounts of fluid with even a weak solution of lidocaine has also resulted in a number
of deaths as a result of anesthetic overdose.
To worsen matters, these procedures are often combined with other prolonged
operations. The percentage of complications and/or fatal outcomes rises dramatically
for patients undergoing multiple procedures who remain under anesthesia for more
than 6 hours. The following 2 categories of liability arise from conventional assisted
lipectomy procedures:
Minor allegations
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Disfigurement and contour irregularities
Numbness
Disappointment/dissatisfaction
Major allegations
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Unrecognized abdominal perforations requiring life-saving or disabling
secondary surgery, possibly resulting in death
Lidocaine overdose resulting in death
Pulmonary edema from overhydration
Pulmonary embolism and death
Miscellaneous allegations
Approximately 5% of all complaints against plastic and reconstructive surgeons have
to do with miscellaneous allegations.
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Untoward reaction to medications or anesthesia
Improper use of preoperative or postoperative photographs
Sexual misconduct (physician or employee)