65.1 Introduction

In 45 years of medical practice and 30 years as an expert witness, the author has seen angry patients and incompetent lawyers devastate physicians’ psyche. Except for the outlying percent of physicians who are impaired or have serious psychological problems, every other physician wants no part of a lawsuit and will, if instructed properly, avoid them at considerable cost of time, money, and effort. Unfortunately in the years of training and teaching in medical school and residency programs there was no instruction on avoiding lawsuits. It was assumed that if you, as a physician, made no mistake then a lawsuit would never happen. We all know this is a fallacy, especially in the cosmetic aspects of surgery. Since we can never truly know what will make the patient happy or what offhand remark by a third party may change a satisfied patient to an unhappy patient, we must arm ourselves with the information to help prevent lawsuits.

Where do we get this information on how to prevent lawsuits? We talk to colleagues who are usually far too upset to discuss their experiences and only see the complaint rather than the whole picture. We take risk management courses provided by insurance companies and we listen to discussion by attorneys at national

R.A. Fragen

Assistant Professor of Surgery, Division of Otolaryngology, University Medical School, 1900 E. Tahquitz Canton Way, Suite A2, Palm Springs, CA 92262-7060, USA

e-mail: ron@thefragens.com

or regional medical meetings. The thing that all these courses have in common is they are presented by lawyers or educators who have never experienced the total patient contact from first phone calls to the office to 2 months postoperation. These courses discuss the technical aspects of lawsuits but rarely the personal and emotional aspects. The success ratio of countersuing plaintiffs and their lawyers is next to zero. So forget about getting even.

As a physician, not a lawyer, is how the author views medical malpractice, nothing in this article should be construed as legal advice. The following is a synopsis of the main points discussed by others in regard to risk management assuming a cosmetic practice where patients seek you rather than involvement as part of the trauma team.

65.2Four Elements of Medical Malpractice: Duty, Breach

of Duty, Causation, and Damages

65.2.1 Duty

Do we have an obligation to treat everyone? No, but there are subtle legalities that create a doctor–patient relationship. If you find a patient or a complex problem you do not wish to begin or continue treating, make it clear in your chart and refer the patient.

Suppose a patient with a body dysmorphia comes for consultation for her fifth rhinoplasty. Display understanding of the patient’s point of view; explain that the

problem is not one you feel comfortable handling and document to who you refer the patient.

65.2.2 Breach of Duty (Negligence)

Implies the physician failed to render the required standard of care, a level of care a reasonably prudent physician would provide under the same or similar circumstances.

Describe in your chart note, and to the patient verbally, the patient’s complaint, by restating their reason for consultation. Also state your findings, diagnoses, treatment plan and why, the risks, and alternatives.

65.2.3 Causation

The plaintiff must prove that your breach of duty (negligence) caused the injury. As we all know in the current atmosphere of turf wars the plaintiff’s attorney can usually pay for, and find, an adversarial physician to support their contention of malpractice.

In one case, a board-certified physician testified that injection of more than 10 mg of triamcinolone at any one time was below that standard of care and caused damage. The defendant physician was severely penalized over this absolute falsehood.

65.2.4 Damages

Compensation for the breach can be economic (loss of wages), noneconomic (pain and suffering), or punitive, usually the result of acts such as being impaired, sexual assault, changing the record, or extreme gross negligence. Of course, the lawyers, courts, and plaintiffs twist the facts so the outcome of the suit is often a turkey shoot with the defendant doctor being the turkey.

Other areas frequently discussed in risk management are advertising, consent forms, and chart notes. Review your website do not advertise that you are the best or credentials that you do not have. This is a frequent part of the complaint, especially if one of your turf war colleagues is the opposing expert.

Medical records are the first place lawyers look to trip you. Risk management will tell you the notes should be legible, accurate, and complete. We know our notes rarely meet their standard. We write

contemporaneously and are often never going to see the patient seeking consultation again. However, your notes should tell a story and substantiate your reasoning. Document a reasoned history, chief complaint, physical examination of pertinent areas, diagnosis, and treatment options. Document informed consent and include pertinent positives as sun damaged skin and pertinent negatives such as no evidence of infection. Document informed refusal. An example may be a patient who has slight neck skin laxity 6 months post facelift. You offer a tuck up to correct the problem and the patient refuses, put this in a chart note – it starts the statue of limitations and lets the patient know you are their advocate.

Part of your chart is your informed consent. An informed consent is more than a signed piece of paper. It should include what a reasonable person would want to know as a beginning. Also include pages of as many risks as you can collect from any source; do not be afraid to copy from your colleagues. In addition, document as a separate chart note that the patient has read, understood, and (after reading and signing the consent) agrees to surgery. If you do not personally go over all of your forms, have the person who does, enter a note and sign and date it. Especially in cosmetic surgery, not only document in the chart but explain to the patient what you see, what you plan, what you expect the result to be, and whether you anticipate more than one surgery or treatment session and who would be financially responsible for subsequent treatment. Examples would include facial filler, secondary surgery for a difficult nose, and deep resurfacing post-facelift in a patient with deep etched rhytids. Learn to prevent lapses in record keeping and communication that cause malpractice suits over unwanted results that are clearly not negligence.

Another trap is the area of vicarious liability. You are held responsible for errors of those you have a duty to supervise. Your staff and what they say is an obvious trap. You should at least discuss patient confidentiality and demeanor in the office and over the phone. Have your staff inform you when patients are unhappy. The patient will often discuss with the staff what they will not tell you. This applies even before they meet you for the first consultation.

“Res ipsa loquiter” – It speaks for itself, i.e., a sponge left in an operative site.

Ideally the physician on call for you and covering your practice should have the same certification and privileges as you.