Some of the Mohs-treated lesions recurred. Ultimately, DS develops metastatic disease from a recurrent lesion. He dies leaving behind multiple family members. The plaintiff’s estate sues the Mohs surgeon. They contend that there must have been a breach of duty for the skin cancer to return. Perhaps more frequent office visits and/or more aggressive treatments would have prevented the unfortunate death of their family member.

Did the Mohs surgeon breach the standard of care? If so, will he be liable for negligence? The patient records are evaluated by an expert for the suing plaintiff’s estate. The records all appear to be reasonable. The plaintiff’s expert refuses to testify because there is no evidence of malpractice by the defendant Mohs surgeon. The plaintiff’s expert testifies that Mohs slides were all clear of malignancy. Six-month evaluations were considered to be reasonable. There is no evidence to suggest that monthly visits would have stopped metastatic spread in this immunosuppressed individual. Recurrence of skin cancer, metastatic disease, and even death are not evidence of de facto negligence. The case will likely be lost by the plaintiff.

Summary: Case Example 2

•Permanent damage is not evidence of negligence.

•Verbal consent is legally acceptable.

•Written consent is easier to prove than verbal consent.

Is the Mohs surgeon liable? It is clear that there is permanent damage to patient. Reconstructive surgery can improve the situation but may never return to the patient’s full use of the nerve. The Mohs surgeon did provide informed consent to the patient. Although verbal consent legally is enough, the written consent provides documentation that the Mohs surgeon performed his legal duty. It is unlikely that the Mohs surgeon will lose this case. The surgeon is advised that legible chart documentation, and documented signed consent, will only help him at trial.

Skin cancers continue to increase in number. There are, as described in this book, numerous accepted techniques for the removal of many skin cancers. By the nature of any treatment, complications may arise. It is imperative that physicians be aware of their duty of reasonable care. Should they breach that duty, they may be found liable in a medical malpractice cause of action in the diagnosis of and treatment for skin cancer.

Summary: Ethical Relevance

•Actinic keratoses (AKs) may become squamous cell carcinoma (SCC).

•Mohs surgery is an acceptable, ethical approach to treat SCC.

•There are many acceptable approaches to treat AK.

•Mohs surgery is not an ethical technique to sue in the treatment of AK.

45.7Case Example 2

A well-known dermatologist treats in excess of 600 Mohs patients each year. He treats a large number of basal cell carcinoma and squamous cell carcinoma patients. A referred patient has a large recurrent ulcerative basal cell carcinoma of the cheek. In consultation, the patient is told, by way of informed consent, that the facial nerve may be damaged during the proposed Mohs surgery. The patient is also told the consequences of such nerve damage. After the third stage of Mohs surgery, it is quite evident that the tumor involves a significant portion of the parotid gland. In removing the remaining tumor, the facial nerve is partially severed with a resultant unilateral lower facial paralysis. The patient sues the Mohs surgeon.

45.8Ethical Relevance

45.8.1 Actinic Keratoses

There are no ethical issues surrounding the use of the Mohs technique for designated basal cell and squamous cell carcinoma. Numerous other cutaneous malignancies can also be successfully treated with this technique. What about actinic keratoses? With all the techniques available, there are many good options for the treatment of AKs. From a statistical point of view, no approach should give a higher cure rate than Mohs surgery for the treatment of AKs. It has been suggested that Mohs surgery has been overused. In no scenario has the ethical misuse for this technique been more blatant than with those physicians who contend that all