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:
– Breast reconstruction
– Face procedures (not around the eyes or nose)
– Liposuction
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.
