Avoiding an Aesthetic Malpractice Lawsuit

The practice of medicine has always been vulnerable to our litigious climate. In addition, current trends in healthcare with declining third-party reimbursements, have increased the number of physicians venturing into aesthetic medicine seeking better compensation for their services.

Non-traditional physicians have entered the aesthetic field in record numbers. The challenge remains to provide competent, safe services, while at the same time steering clear of our legal system. These simple tips are intended to help with both.

Do The Right Thing

Sounds simple, but it is still a time-honored way to maintain a safe practice and a strong, positive reputation in the community. One of the exciting parts of our unique specialty is that it is always evolving. There are new products, devices and procedures to try that can improve outcomes and benefit patients.

However, new treatments also have a downside and a learning curve. Approach them incrementally and carefully, and keep patients informed. Know your limitations and know when to refer patients to colleagues with superior skills and experience when better or more advanced treatments are preferable.

Be Hands-On

Patients derive the greatest confidence directly from the practitioner. It is fine to delegate tasks to other staff members. However, if problems arise address them directly, promptly and thoroughly. Patients will often seek other medical, or legal, opinions when they feel there is a lack of communication.

And treat everyone business as usual. Resist straying, or cutting corners, from your standard protocols and procedures for “special” patients. A surprising number of lawsuits are initiated by colleagues, friends and other, socalled, “VIPs”. The practice of medicine, like many other professional services is about communicating and accurately managing expectations.

Documentation, Documentation, Documentation

To borrow a phrase from realtors, these are the three most important things to do for a defensible practice.

Documentation can be the practitioner’s best friend in a legal jam. Develop a policy with your staff to document all patient interactions. In today’s technologically diverse climate this includes office visits, phone calls, text messages, IMs, emails, etc.

Keeping accurate, contemporaneous, and detailed records can often avert a problem. I recall a case where a patient claimed she had been neglected post-operatively. However, her records documented 32 staff interactions in just the first two months, refuting her claim.

This process starts at the first visit. Compose a thorough intake form to include past history, medications, allergies and so forth. Procedures should be carefully documented, including complete pre-operative, and timely post-operative photographs. Photography should be safely archived with back up.

Consents should be procedure specific, and when possible, filled out at a pre-operative visit in advance of the procedure. I also favor having patients initial every paragraph. In a legal challenge, a well documented chart will be your best friend. Conversely, I have seen very defensible cases compromised by poor record keeping or lost files and photos.

Beware of the Complex Case

Aesthetic patients often come with a history of previous treatments and problems. Evaluate them carefully. Sometimes complex patients will flatter the new physician or speak ill of the previous one. Beware on both counts because once you undertake the case, the patients’ memory of their past history is short-lived, and the new physician becomes the captain of that ship.

A very wise colleague, Bruce Greenstein, MD, from The Bronx, N.Y., coined what we refer to as The Greenstein Corollary. “Remember, the patient who requires more than one operation will often require more than two operations.”

In addition, an uncomfortable reality of declining reimbursements from third-party insurers is the benefit-to-risk ratio of covered, quasi-aesthetic procedures, such as breast reduction or reconstruction.

Insurance company contracts are often onerous towards the physician with poor compensation. Although physicians are generally altruistic by nature, these procedures can be complicated and lead to litigation.

The unfortunate, but important, question then becomes; is this case, and the meager return on investment, worth the potential risk of years of litigation.

Don’t Let Professional Jealousy Start a War

It is ethical and appropriate to identify substandard patient care. However, the temptation sometimes exists to be critical of competitors when patients come with complications seeking an opinion, even when information is incomplete. This is exacerbated when egos and substantial fees are involved. However, often it is the beginning of a tit-for-tat exchange that can trigger litigation.

Have all the facts necessary before expressing an opinion of prior care or etiology. Do not make a critical comment to a patient privately about their care that you are not prepared to repeat and defend under oath, because a retained expert, such as myself, will aggressively challenge those remarks.

I recall a case where a patient sought a second opinion from a local competitor for a thigh indentation following liposuction. The surgeon, without any records, opined that an overly aggressive harvesting of fat was responsible for the defect. His remark was used in the pre-suit affidavit against the operating surgeon.

However, unbeknownst to either surgeon, the patient had surreptitiously received dozens of unorthodox steroid injections for hip arthritis to the very same thigh area, causing the indentation. The second surgeon embarrassingly had to withdraw his critical remarks at deposition.

In summary, be fair to patients and colleagues; practice competent, ethical, caring and defensive medicine to avoid exposure to our legal system.

Editor’s Note: This article is intended for general information purposes only and should not be considered legal advice. For specific information please consult your attorney.

Dr. Jorge Perez, MD, is a Board-Certified Plastic Surgeon, practicing in Fort Lauderdale, Florida for over 30 years. A graduate and former faculty member of the Albert Einstein College of Medicine in New York City, he is selected regularly among Castle Connolly/U.S. News and World Report's listing of America’s Top Doctors. Dr. Perez has been retained as a consultant and medical expert for over 25 years. He has provided records review, examination and testimony in matters of adult and child plastic surgery, burns, scars, hand, skin and soft tissue injuries, for both plaintiff and defense. He assists attorneys in preparation for sentinel depositions and vigorous cross examination of opposing experts.

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