As a plastic surgery expert witness, I’ve come to understand that a common misconception among physicians is that legal actions against them are random events that cannot be prevented. Having been hired as a plastic surgery expert witness on many cases and by providing a detailed analysis of medical-legal cases, it’s become apparent that certain types of procedures and outcomes are more likely to result in a lawsuit. While not totally preventable, the chance of a legal action can be reduced. This is achieved by physicians using proper communication with patients. The information below has been acquired from my extensive experience as a plastic surgeon and my additional experience as a plastic surgery expert witness.
Certain generalizations can be made about the common causes for legal actions due to a closed claims review of plastic surgery cases at one large medical liability company over a 10 year period. The plaintiff complaints and incidence were:
– Dissatisfied with results 29%
– Scar deformity 21%
– Emotional distress 14%
– Infection 14%
– Asymmetry 5%
– Death 5%
– Burn 5%
– Pain 3%
– Hematoma/seroma 2%
– Allergy <1%
– DVT or PE <1%
– Foreign body <1%
Looking at the top complaints, three of them are not life threatening or serious medical complications. They are different levels of dissatisfaction, which could potentially be preventable by proper patient selection, education, and communication before surgery.
The following are at the top of the list ( in descending order), in terms of the plastic surgery procedures with the most legal actions:
The frequency of the association of the top 3 procedures with legal actions is not surprising. These are the most common procedures plastic surgeons perform.
Digging deeper into this closed claims review, a standardized formal analysis of each case was done to determine the underlying risk management issue(s) associated with the claim. Surprisingly, only about one-third of cases were determined to be caused by the quality of a surgeon’s technical skills. Rather, patient-related behavior and poor communication were found to be major factors in claims. Surgeon judgment was less commonly an issue.
So, what can we learn from this plastic surgery closed claims analysis? Patient dissatisfaction, rather than physical harm, seems to drive many legal actions. Contributing to this are the patient’s unrealistic expectations, unanticipated (or not discussed) complications, and problematic patient behaviors (particularly patient failure to comply with physician instructions due to communication issues). Poor communication between surgeon and patient, combined with a less than perfect treatment outcome, leads to patient frustration and anger. Unfortunately, many surgeons respond defensively (seen by a patient as arrogance), which increases patient frustration, and subsequently causes the patient to seek legal advice. This miscommunication cycle can spin out of control as both patient and surgeon “defend their position” instead of working towards resolution.
Aesthetic plastic surgery procedures seem to have a higher risk, as unrealistic expectations are common and self-image and appearance issues are harder to overcome when procedures do not turn out as planned. The burden of additional patient self-pay costs due to the need for revisions infuses further stress into the situation. This poses challenges for a plastic surgery expert witness because of the need to comment on the standard of care, taking into account how the risks and result probabilities were presented to the patient.
Poor communication and patient dissatisfaction can be reduced, however, especially when high-risk cases are identified early. Before a procedure is performed, a surgeon needs to engage their patient and educate them on what types of outcomes are possible. While many surgeons consider informed consent to be a document that is signed before surgery, it is actually an educational process which allows the patient to understand and accept the risks involved. Done properly, it also gives the surgeon an opportunity to assess the patient’s level of understanding and ability to handle unexpected outcomes. When complications occur, the surgeon must be able to empathize with the patient. As hard as it may be to spend more time with a dissatisfied patient, it is better than avoiding them or using a staff member to deal with their concerns.
Communicating with a dissatisfied patient means allowing them to talk about their problem and how it affects them. Listening without interruption and being able to express empathy sets the tone for a more productive discussion on how to resolve a complaint. Asking the patient about what they would like to have done next and explaining realistic options can further engage the patient and avoid future legal action.
While a surgeon’s technical skills certainly play a major role in a procedure’s outcome, the surgeon’s communication skills and patient behavior may play a bigger role when an unfavorable outcome (real or perceived) occurs.
About The Author
EXPERT WITNESS E-005169
This article was authored by a board certified plastic surgeon. He has been appointed to numerous high ranking plastic surgery clinical and administrative positions throughout his career, including Head of Plastic and Reconstructive Surgery at one of the largest healthcare networks in New York. In addition, he has extensive experience working as a plastic surgery expert witness, is actively involved with plastic surgery professional studies, is published within his field, and is a member of the Breast Leadership Board at his current institution.
BS, University of Michigan
MD, Michigan State University
Residency, General Surgery at the University of Minnesota
Fellowship, Surgical Infectious Disease Fellowship at the University of Minnesota
Residency, Plastic and Reconstructive Surgery at the University of Texas Southwestern
Fellowship, Institute of Reconstructive Plastic Surgery at New York University
Board Certified, American Board of Plastic Surgery
Member, Patient Safety Committee, American Society of Plastic Surgeons
Member, American College of Surgeons
Member, Association of Academic Chairmen of Plastic Surgery
Member, Midwestern Association of Plastic Surgeons
Member, American Society for Aesthetic Plastic Surgery
Member, American Society of Maxillofacial Surgeons
Award, Best Reconstructive Paper, Plastic and Reconstructive Surgery Journal
Award, Golden Apple Teaching Award
Award, Top Doctors US News & World Report,
Publications, 79 peer-reviewed journal articles, 7 books/chapters and 74 abstracts
Reviewer, Plastic and Reconstructive Surgery
Reviewer, Aesthetic Surgery Journal
Reviewer, Year Book of Plastic Surgery
Reviewer, Selected Readings in Plastic Surgery (Editor)
Former, Chief of Plastic Surgery at William S. Middleton Veterans Hospital
Former, Chief of the Section of Aesthetic Surgery at the Division of Plastic Surgery at the University of Wisconsin
Former, Attending physician in the Division of Plastic Surgery at NorthShore University HealthSystem
Former, Clinical Program Director in the Department of Plastic Surgery at Ohio State University
Former, Chief of Aesthetic & General Plastic Surgery in the Department of Plastic Surgery at Ohio State University
Current, Plastic Surgeon at a Private Practice
Current, Adjunct Associate Professor of Surgery in the Division of Plastic Surgery at a major university hospital center