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      Plastic Surgery Loss Prevention Panel Report

      At a recent meeting of the American Society of Plastic Surgeons (ASPS) Professional Liability Committee, Mark Gorney, M.D., medical director of The Doctors Company, chaired a panel discussion of case scenarios illustrating issues pertaining to plastic surgery loss prevention.

      The Multiple-procedure Dilemma

      Anticipating few complications and wanting to save money, a patient asks a physician to use the surgicenter to perform lipectomy on her face, neck, abdomen, arms, and thighs. After more than 10 hours of surgery, a respiratory complication occurs in the recovery room. Paramedics are called and the patient is transferred to the ER, where she is pronounced dead.

      The four critical questions here are:

      1. Should multiple operative sites be scheduled in one session or separately?
      2. Should discussion of elevated risk exposure with the patient be included in the informed-consent process?
      3. Should the patient be given the choice of less risk with additional procedures?
      4. Should these procedures be performed in a surgicenter?

      The volume of fat extraction, the multiplicity of procedures, and the long duration of the procedures are all relevant issues in the outcome. Our panel suggests that surgical procedures exceeding six hours should be performed in a hospital rather than a surgicenter, as morbidity increases with the duration of the surgery. The panel also felt that multiple procedures with a high volume of lipectomy should be reconsidered. Finally, all members agreed that full disclosures and consensual discussions are a part of the informed-consent process and should be documented in the medical record.

      Patient-Selection Criteria

      Based on the premise that most litigation in plastic surgery occurs with elective cosmetic procedures (see chart following), it is important to develop patient-selection criteria. Below is a list of possibly troublesome patient types that should be avoided when possible. It is not all-inclusive, but it provides a good starting point.

      Avoid patients who:

      • Are emotionally or mentally unstable, or whose behavior suggests the possibility of fixations on particular physical features
      • Are angry, hostile, demanding, or unreasonable; are dissatisfied, unhappy, or negative
      • Harbor unrealistic expectations
      • Show evidence of noncompliance
      • Have a history of poor relationships with other physicians
      • Have litigation already in progress against a health care provider
      • Are requesting repeat procedures on the same site with inadequate reasons
      • Are abusive to staff
      • Have family or a significant other who doesn’t want the procedure performed
      • Have recently experienced major life changes (i.e., divorce or loss of a loved one)
      • Are anxious about a prior bad result
      • Make you feel uncomfortable, whom you simply do not like, or who you feel don’t like you
      • Have funds sufficient only for the procedure but not for any additional procedures that may be required

      Spend additional time with patients who are poor listeners to ensure they completely understand the procedure, process, and anticipated outcome. Ask them what you can do to make them happy; their answer will help reveal their level of understanding. Also, listen to your staff and allow them equal opportunity to veto a patient. Don’t make exceptions—apply patient-selection criteria consistently.


      The Repeat Performance

      A first-time patient comes to a surgeon and expresses high praise for this surgeon’s skills, but the patient explains she has had multiple procedures performed by other surgeons, described as butchers. The patient, however, expresses complete confidence that this surgeon can reconstruct her nose. Two months postop, the patient sues—she is unhappy with the outcome.

      This type of patient probably should have been screened out by the surgeon on the first visit. Develop formal patient-selection criteria and protocols for protection from litigious patients. The postoperative handling of an unhappy patient requires time, endless handholding, and infinite patience. Staff can respond when appropriate, but it is often best for the physician to schedule these patients when there is time to empathize. Again, asking, “What would you like me to do?” is helpful. Bring the patient back for repeat visits, at no charge, until the patient begins to apologize for taking your time. The worst thing you can do is minimize or totally avoid having to deal with him or her.

      The Question of Size

      A 75-year-old female asks for mastopexy with implants to achieve a DD bust size. The patient is low-key, sincere, in good physical condition, and looks less than her stated age. The procedures are done, but the patient is dissatisfied with her breast size, which she considers too large—and litigation begins. In the course of discovery, the surgeon learns of the patient’s mental health issues.

      A 34-year-old patient with back, neck, and shoulder pain receives medical clearance and third-party approval to have her breasts reduced. She selects the size, and the procedure goes well—no complications, a beautiful outcome, and the patient is discharged. Six months postop the patient sues, alleging that the physician reduced too much.

      What can be done to avoid situations like this? Multiple preoperative visits help greatly for a variety of reasons: They build rapport, present a better opportunity to identify what the patient truly desires, and allow hidden doubts to surface and be addressed. Ask the question, “What’s the most important thing you want to get out of this surgery?” Scheduling more than one preoperative visit offers the chance to assess the patient’s level of understanding and deal with any misconceptions proactively. It also diffuses postoperative allegations of insufficient disclosure.

      Realistic and Unrealistic Expectations

      How do you determine if the patient has realistic expectations? This question evoked a considerable response and discussion from our panel.

      • Use of patient questionnaires met with a mixed reaction from our panel members. Most questionnaires were thought to be too cumbersome and useless if no one notes abnormalities and questionable responses.
      • Before and after pictures of previous patients may be helpful, but they need to be used with great caution. The photos can only be used with proper patient authorization, and both good andmediocre outcomes should be shown. Remember that showing only stellar results legally implies that this is the kind of result the patient can expect. In some courts, it can be interpreted as implied warranty.
      • In-depth discussions, in addition to the informed-consent process, received unanimous support from our panel. Asking why these patients desire change, what they envision will be different in their lives, and what their thoughts are about the surgery provides the surgeon with well-developed ideas of the patient’s understanding and expectations. In breast cases the patient’s significant other should alwaysbe included.
      • Electronic imaging can be a worthwhile adjunct if utilized with great care. Most patients will recognize that their ultimate outcome will not be exactly like the imagery, but beware of the one who expects an exact duplicate of the electronic image. Imaging should only be used as an aid to the plastic surgeon and never as a selling tool. Under no circumstances give the patient a copy. This constitutes expressed guarantee.
      • Patients who bring magazine photos to show the surgeon generally have a misconception of the procedure’s final outcome. Bringing them back to reality requires tact, understanding, and diplomacy. As with any suggestion or request from the patient, these magazine photos should become part of the medical record, along with documentation of your discussion and the statements you used to encourage more realistic expectations.
      • Pulling information from a patient can often be very difficult, especially when the patient is uncertain or insecure in their request. If, as in breast reduction, size is an issue, find a better way to approach the subject. The question, “If I were to err, would you want to be too big or too small?” gets right to the crux of the matter and can be very successfully used. Also, since cup size varies by lingerie company, asking the patient to bring in her idea of a C or D cup will assist with clarification for both the patient and the physician. Your best prophylaxis against complaints about firmness can be effectively forestalled by putting a filled prosthesis into the patient’s hand. Then squeeze it and ask the patient (and their significant other) to poke it. They will know a priori what capsular contracture is all about.
      • Preoperative and postoperative photos are an important part of the clinical practice and are, therefore, also an integral part of the medical record. Typically, the preop photo is “saddened” while the postop photo is “gladdened.” A true-to-life photo is most desirable. The critically important responsibility of obtaining patient authorization for the photos must never be minimized. In addition to obtaining patient authorization to take the pictures, the document must also contain your intended use of the photos. Will they be used to show to the next patient? Will they be placed in your latest brochure or on your new Web site? Any use of photos requires the patient’s written authorization.
      • Enlist the help of office staff in determining patient expectations and understanding of the procedure.


      The Old Issue of Scarring

      A 48-year-old male patient desires a face- and neck-lift. His occupation requires a youthful appearance, but many years of tanning have led to multiple wrinkles. He has medical clearance and understands and accepts the informed-consent process. Surgery goes well, with no complications. Six weeks postop the patient returns, dissatisfied with scarring. The physician is also surprised, as the scars are visible with hypertrophy.

      No patient-selection criteria will identify an individual who will develop hypertrophic scarring; avoidance is therefore difficult. Preoperative instructions and guidelines may however mitigate the unfavorable outcome. Ensure that your patient understands that allhealing leaves scars. How you scar is determined by your genetic package—like color of skin and texture of hair, it has nothing to do with surgical skill or technique. Paying attention to skin pigmentation is important, and a preoperative skin assessment could yield significant findings. Additionally, informing the patient of increased healing problems related to smoking is essential. Stress that they should refrain from smoking for a minimum of two weeks before and after surgery, with a month preferable. Although still controversial, avoiding any herbal remedies may also be suggested. Also, in this type of scenario, before and after photos become quite simply a matter of winning or losing if trouble strikes.

      Preoperative questioning of the patient’s history as it relates to scarring may also indicate postoperative results.

      Postoperative Death

      A 55-year-old male with nasal septal defect requires surgical correction. Surgery goes well, and the patient is sent to the physician’s usual and customary site for overnight care. The patient hemorrhages during the night and is found dead the next morning.

      Handling postoperative patient care is complex, variable, and can become a primary issue. If, in your medical opinion, after care is needed, arrangements completed in advance will lessen the patient’s stress and minimize your liability. Lacking family or other assistance, determine the amount and type of after care required. Discuss it with the patient and family before surgery takes place. Home health nurses and private duty nurses are usually available. If a different and private arrangement is made by the patient, ensure that your postoperative instructions are not only understood, but complied with as well. If you refer a patient, make sure that the caregivers are qualified to provide the level of care needed. If faced with a situation of no transportation home after the surgery, arrange for taxi service. If the patient refuses to comply, retain him or her until you are comfortable with the recovery stage. Document the situation and remind the patient of the potential consequences of his or her actions. Be sure this is in writing.

      If you use one or two caregiver services on a recurrent basis, periodically assess the services to ensure that standards are met. And, of course, document any and all conversations related to after care requirements.

      Red Flags with New Patients

      When patient-selection criteria are applied and the new patient obviously fits into one or more of the red flag categories, how should the plastic surgeon proceed?

      Of the many available options, courteous denial ranks as the best approach. It is acceptable to inform the patient that, although you understand his or her request for cosmetic surgery, you do not feel that a significant rapport can be established to ensure a favorable outcome. You are not required to make a referral or elaborate on the reason you are denying care. It is sufficient to courteously decline. If they stubbornly insist, the retreat of last resort is to inform them you simply do not possess the skill.

      The Moment of Truth

      Committee members were asked to provide the single best piece of advice they could offer plastic surgeons; their suggestions follow:

      • Use your patient-selection criteria to decline patients who make you feel uncomfortable in any way.
      • Follow your gut reaction at all times.
      • Very carefully assess the patient, and perform a detailed evaluation.
      • Communicate clearly and assertively with the patient to ensure agreement and understanding.
      • If in doubt, discuss it with an experienced colleague in your specialty.
      • Know your limitations and act within them.
      • Learn to be comfortable saying “No.”
      • Ask yourself these questions:
        1. Do I like the patient? (relationship?)
        2. Can I help the patient? (expectations?)
        3. Can the patient afford the procedure? (too eager?)
      • Any fee you forego when you deny care would pale in comparison to the cost of litigation, both financially and emotionally. Do not substitute economic considerations for gut feeling or common sense.
      • Surround yourself with good staff and then listen to them. Allow your staff to contribute to discussions of denial of care.
      • Never let your ego get past your surgical judgment.


      About the Author

      Joan Bristow is former vice president of The Doctors Company’s Risk Management Department. She retired in 2005 after 13 years of service to the company.


      Plastic Surgery Panel and ASPS Professional Liability Committee

      Chair Mark Gorney, M.D., California; Eric P. Bachelor, M.D., California; Deborah S. Bash, M.D., Arizona; Jack G. Bruner, M.D., California; David M. Charles, M.D., Colorado; Walter L. Erhardt, Jr., M.D., Georgia; Neal R. Reisman, M.D., Texas; Paul L. Schnur, M.D., Arizona.


      The Doctors Company has been endorsed by ASPS since 1990.


      The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

      J4229 2/04



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