When you are only a consultant, remember you have an independent duty to the patient and a duty to have knowledge of pertinent lab, x-ray, and history, i.e., review records or document the patient is supposed to bring records.

65.3 Avoiding Lawsuits

Lawsuits come from angry, frustrated patients looking for a result or answer to a problem and are left feeling their doctor has either deceived or abandoned them. Patients sue because of greed, lawyers, unrealistic expectations, poor outcomes, perception of poor care, failure to keep the patient and family informed, and poor communication.

Your medical team’s relationships, doctors, nurses, technicians, and front office personnel are also responsible for patient relationships. Thirty percent of suits are urged by another health care professional. Remember patients do not sue doctors they like and trust because they do not want to damage the relationship. In this age of the computer, email, and text messages, almost everyone hungers for interaction with a person they admire and respect.

We have all known physicians who have frequent complications but rarely get sued. Why is this? Rapport is defined as a close relationship with agreement and harmony. Make people feel comfortable with you. Let them know you care about them not just one or more of their body parts. Stop treating patients as conditions and treat them as people. Interact with patients like they are a most valued friend. Listen and show it, look at them, touch them, call them by name, and do not interrupt them. Sit and actively listen to you patient. Use body language, eye contact, leaning in, facial expression, and touching to show your interest. Paraphrase the patient’s story and requests using your own words to show you care. This may help clear up any misunderstanding of their requests and concerns.

Avoiding lawsuits begins with the first office contact. Your office must be courteous, friendly, and respectful to patients at all times. Do not put them on hold for long periods, if you are a little late explain why and apologize. You and your staff should engage the patient like they are the most important person in the world and that you are happy they called your office. When the patient arrives for consultation be

efficient and helpful. However, train yourself and your staff to look out for the patient from Hell! The body dysmorphic, overly flirtatious, the patient who has called and cancelled repeatedly, and the patient spending their last dime all should raise a caution flag. When you, the physician, meet the patient, look at them, not your computer, know their name and ask, “What can I do for you?” Take enough time, listen, and ask, “Is there anything else?”

Listen first, then write or dictate and excuse yourself from the close contact to look away to write and organize the information. Then return to patient contact and become your patient’s guide and counselor, be chatty about their job, family, or other personal areas.

Carefully explain your expectations and what their expectations should be. If your expectations differ from the patients original expectations, resolve the differences before moving forward. Explain how the patient can help or diminish the result. Discuss alternatives and likelihood of secondary and/or revision surgeries and if there will be additional charges. Common examples are additional fat grafts or fillers with facelifts, possible skin excision, or touch-ups after liposuction. Ask if there are any questions. When the consultation is over thank the patient by name for coming to consult with you.

Patients will sue if angry. They will get angry if you or your staff are rude, insulting, or if you abandon them.

When it comes to surgery, be rigorous in your charting, planning, photographs, lab work, history, and physical exam. Try to operate with the same team; make sure the patient is positioned properly and that you have the medicines, implants, and equipment that you need. Try to do things in a regular and repetitive way to avoid mistakes. Concentrate on the task at hand and avoid interruptions that break your concentration. Get your helpers to concentrate on the patient, not the phone or computer.

When you have a problem with a result, stay on top of it, call consultants and see the patient often. Explain what is going on, how you plan to handle it, and how long you expect until resolution. Keep the patient on your side, support them, and do not deny the problem. Always make them feel you will be there for them. It is often a good idea to enlist a family member or friend in the care of the patient.

We have all run across physicians who have many complications and never seem to get sued. Why is this?

People will sue an expert technician who does not perform to their expectations. People rarely sue their friend and counselor.

How well we handle problems often significantly affects whether a suit will follow. When dealing with an angry patient, listen and do not respond to each complaint. Wait until the patient is done, actively listen, and ask if there is anything else. Paraphrase the complaint and ask for confirmation. Above all: Do not get defensive. Attempt to explain the cause of the problem, i.e., thick skin and a fibrous supratip poly beak. Explain a proposed treatment and a time frame. Explain how the patient can help. Do not promise anything! Follow up with a phone call. Communicate bad news or a significant problem forthrightly and in private. Notify patients of lab results and do not make them wait since waiting creates angst and then anger if something pertinent is late in being discussed or if a normal is not delivered timely.

What can we do with the noncompliant patient? Educate the patient and ask them to repeat so you and they understand. Ask in what other areas they have been noncompliant. If the patient does not follow through in one area maybe there are others they are not letting you know about. Get the patient and a family member or friend involved with the treatment. Often ask what part of compliance will be most difficult for the patient and if they will agree to change behavior. How many patients either overclean or do not clean postauricular incisions?

Confidentiality is especially important in a cosmetic practice. Get permission to use and show photos. Make sure your staff is aware what happens in the office stays there. Have them sign a confidentiality agreement and make sure they do not gossip about patients in the office because they may be overheard. When a patient asks to speak to another person who has had the same procedure, protect identities by using only first name and ask the former patient to contact the future patient so nuisance phone calls come only if the former patient gives out their phone number.

65.4What to Do When a Lawsuit Is Threatened or Filed

When a case does not go well and you get a request for a chart to be sent elsewhere or a lawsuit is either threatened or filed, review the chart. Do Not Alter the chart.

Write contemporaneous notes about the case, not in the chart. Ask your staff to do the same since often they are privy to information you do not have. Patients are often bumped in the nose postrhinoplasty and tell only your receptionist. One of my patients was socked in the face by a boyfriend 2 days post cheek implant and the patient did not tell me when displacement occurred. However, she sobbingly related the incident to our patient counselor. The patient went on to file a lawsuit which was stopped when we informed her lawyer of the assault by the boyfriend. These personal notes should be in the form of a letter to your attorney so they can protect you.

Always review a chart before copying as this is often the first sign of an impending lawsuit. Never allow staff or anyone to copy a chart you have not reviewed.

Always be involved with your insurance company and defense attorney. No one else knows the case better than you. Review your notes and other information supplied by the patient, your diagnosis, treatment plan, what happened, and why. Look up literature just as if you were to be the expert on the case. Remember, lawsuits take 2–5 years (or more) to come to trial. The notes you make will help you remember later.

What happens when we are served notice of a lawsuit? It ruins your day but do not let it ruin you. A lawsuit usually demeans your professional competence and your integrity. This usually gets you angry and creates great stress. Remember, lawsuits are about money and are a part of doing business. They are the reason we have insurance companies and why we pay those premiums. Clear some time and take a deep breath. Notify your insurance carrier.

Unfortunately, malpractice lawsuits are about us and are personal. If the suit were about a fence one foot over the property line we would not take it personally. Try to put the suit and the accompanying angst in that category of the fence rather than a personal attack. Do not be afraid to contact a friend or mentor in this field. There is probably no mature physician in the field of cosmetic surgery who has not been sued. Try to compartmentalize the stress, remembering the process will usually take years. We are all compulsive perfectionist personalities and our tendency is to review the incident and make sure we do not commit the error again. We obsess about it. This leads to sleepless nights and continued stress and the likelihood of making additional errors because of fatigue. Control your working hours

and maintain a balance of work, rest, recreation, and sex. Work on your personal relationships and emphasize people skills. Do not get into a depressive funk. Especially monitor your use of medication and alcohol. Post lawsuit stress is real. Lawsuits can take months and years for resolution. Be reasonable and go back to work. Statistically, we are twice as prone to be sued a second time in the 12 months after being notified of a first lawsuit.

The author is a big proponent of arbitration; it takes less time, costs less, and presentation is in front of a person or panel educated enough to recognize the nuances of scientific and technical matters. The physician does not need to be present during testimony. There is little to no grandstanding by the attorneys. The emotional defendant is blunted. As an expert witness for many years the author feels that the defendant physician gets a better deal. There is usually no problem with getting patients to sign arbitration agreements.

What can you do about an opposing expert witness who lies under oath? The American College of Legal Medicine (ACLM) has produced legal guidelines for the ethical conduct of physician expert witnesses. The testimony is considered the practice of medicine and as such this testimony (in the trial records) can be sent to the American Medical Association (AMA), the physician’s specialty board, and the physician’s state medical board. Experts are given wide discretion by courts who do not know medical facts, but the ACLM’s guidelines state that the expert must not be an advocate or partisan for either party, the expert should have recent experience in the area of testimony, the expert should testify honestly without excluding relevant information, there should be no conflict of interest with the clients or attorneys, and testimony should be based on literature or stated that it is opinion. The author would

encourage plaintiffs or defendants who feel wronged by testimony to complain to the appropriate agencies and boards.

The author realizes this is a different approach than you are used to. Most risk management courses involve how you advertise, your chart notes, history, and physical, reports, consent forms, and other documentation. You all should know these are important.

It is the art of being your patient’s advocate, friend, and counselor that keeps the lawsuits away. It is the documentation that helps you win, not prevent, the suit and the author’s experience, as a malpractice expert witness, is that most suits involve technical issues. It is easier for a good expert witness to explain, document, and footnote your defense before an arbitration judge or panel. Most juries do not understand even the simplest technical points and tend to write off both the plaintiff and defendant experts as a balance. Juries look to the emotional distress and is it justified given the less than desired result. The more convinced the jury is that the result of surgery led to significant and justifiable distress to the plaintiff, the more likely is the plaintiff’s verdict or settlement even though your treatment was within the standard of care.

If you have problems call and ask for advice. If you are sued, participate in your own defense. “RON’S Rules” state almost all patients lie either by omission or commission and when the patient decides to sue, everyone lies: The patient, the family, their experts, and their lawyer.

There are many subtle aspects of avoiding suits and winning those you are unable to avoid. Of all the things you wear, your expression is the most important. Be kinder than necessary because everyone you meet is fighting some kind of battle.