We analyzed 1,438 malpractice claims (a written demand for payment) against plastic surgeons that closed from January 2007 through June 2015, to better understand what motivates patients to pursue claims and gain a broader overview of the system failures and processes that result in patient harm.
Most Common Patient Allegations
74% of all plastic surgery claims included the three most common allegations.
49% Improper performance of surgery
This allegation was often made when the outcome of surgery differed from the patient’s expectations. However, a number of these claims arose from complications that were known to the patient as a risk of the procedure, and the documentation showed that the potential risks were discussed with the patient prior to surgery. The percentage of claims with substandard care was 5%.
A 25-year-old female consulted a plastic surgeon about a breast lift. She weighed 157 pounds and was size 37D. The surgeon recommended breast lifts with implants. The patient signed a seven-page consent form that outlined specific risks, including tissue necrosis. She was given antibiotics prior to her mastopexy and augmentation.
During the seven-hour surgery, the surgeon removed 327 grams of tissue from the left breast and 414 grams from the right. Photos taken postoperatively showed pink nipples. Antibiotics were given following surgery.
At the office visit one week following surgery, cultures were negative, but Levaquin was again prescribed. During the second office visit two days later, the surgeon applied a crisscrossed bandage because of swelling. Four days later, external ultrasound was used to evaluate the cause of the swelling. It was noted that the areolae were changing color. The surgeon asked the patient to return to the office in two days.
During the next office visit, the surgeon noted clear drainage. An examination of both breasts revealed blisters and erythema around incision sites. The blisters were debrided; cultures grew Alcaligenes, and the patient was referred to an infectious disease specialist. He noted bilateral necrosis in areas around the nipples with vertical incision inflammation consistent with infection. He started the patient on IV antibiotics.
Two weeks later, the infectious disease specialist noted hardened black eschar involving both nipple areas with some wound dehiscence and underlying fat necrosis. Ten days later, wound cultures were positive for Pseudomonas aeruginosa. The patient was started on Levaquin and referred to a wound care specialist who started hyperbaric treatments.
The patient underwent several stages of reconstructive surgery. She now has severe scars and deformity of both breasts. Reviewers were critical that too much breast tissue had been removed and that the implants compromised the circulation.
13% Improper management of surgical patient
These allegations arose from cases in which surgical complications were not managed effectively. Examples included:
- Delayed treatment of infections leading to scarring, tissue necrosis, and sepsis.
- Optic nerve infarcts from incorrect positioning of the patient.
- Scarring from an operating room fire near the patient’s face.
- Decreased circulation resulting in tissue necrosis from improper use of compression garments and hose.
A 55-year-old obese female was admitted to the hospital for abdominoplasty and liposuction of her trunk. Surgery lasted eight hours. Her systolic blood pressure remained in the 90s during surgery. The patient was given 500 cc of Hespan along with 7,800 cc of IV fluid. Urine output decreased toward the end of the procedure, so she was given 100 mg Lasix. The patient’s estimated blood loss was 650 cc. At end of surgery, her blood pressure was 120/80.
In the post anesthesia care unit (PACU), the patient was awake and alert. About 90 minutes later, her blood pressure dropped to 55/43. She developed respiratory distress and became lethargic. The patient was reintubated and given several doses of ephedrine, but her blood pressure continued to drop. Hespan was started. The patient’s heart rate was in the 60s before her blood pressure dropped further. A code was called.
A hospitalist placed a central line for rapid fluid administration. A chest x-ray showed no pulmonary edema. The patient was given bicarb and calcium chloride for acidosis and hypocalcemia. She was started on dopamine. The patient’s hemoglobin was found to be 4.4 gm/dL. Following placement of an arterial line, she was transferred to the ICU.
Numerous consults were requested, and she remained on pressor support. She had no signs or symptoms of disseminated intravascular coagulation (DIC), renal failure, or rhabdomyolysis. Following the transfusion of 2 units of packed red blood cells, her hemoglobin was 6.2 gm/dL, and her platelet count was 156,000/mcL.
The working diagnosis was shock due to severe anemia. Initially, her physicians thought the anemia was due to massive fluid shifts since the low serum albumin was consistent with continued aggressive fluid management.
The next morning, the patient had a cardiac arrest, became bradycardic, and expired. No autopsy was performed. Physician reviewers thought the low hemoglobin levels were not due to hemodilution by IV fluids but to acute blood loss and felt the patient should have had a CT of the abdomen and pelvis to determine the source of blood loss.
12% Improper performance of treatment or procedure
Examples of this allegation included sclerotherapy injections that resulted in edema and scarring, fat injections that resulted in disfigurement, and pulsed light treatments that resulted in hypopigmentation of the face. Patients also suffered nerve damage and scarring from liposuction of the face and burns during laser facial hair removal or resurfacing of the face.
A 55-year-old female was treated by a plastic surgeon for evacuation of an abscessed facial hematoma sustained in a fall. Three years later, the patient returned to the surgeon and complained of brow ptosis, facial skin laxity, and a residual malar soft tissue deficit from the previous hematoma surgery. The surgeon recommended endoscopic brow lift and a limited incision mid-facelift with sutures. The patient had a history of a previous facelift. He also recommended fat injection to her cheek and canthopexy laterally. For facial skin laxity and wrinkling, he recommended a trichloroacetic acid (TCA) peel. The plan was to do primary areas of the perioral, corrugators, and forehead with feathering to the rest of her face with TCA.
The surgeon documented the discussion of risks, including delayed healing, scarring, and swelling. He gave a prescription for Renova to use preoperatively to prepare the skin. The patient signed the consent for all of the procedures, including the TCA peel.
After completing the surgical procedures, the chemical peel was performed with TCA at 50 percent. Feathering of margins was done with 25 percent TCA. A light frost was allowed but was somewhat uneven in penetration. The peel was neutralized prior to any evidence of invasion of the reticular dermis. The entire peel area was soaked with cold compresses and then coated with a layer of Aquaphor and antibiotic ointment prior to covering the skin with gauze. The patient was discharged in stable condition.
Following this treatment, the patient was seen in the office more than 15 times with complaints of burns and scarring of the face. The surgeon gave cortisone injections to soften the scars from the chemical peel.
The patient then sought treatment from a second surgeon. He performed two surgeries for ectropion of both lower eyelids. Surgery was successful.
The patient/plaintiff filed a claim against the first plastic surgeon, alleging improper performance of the skin peel procedure. The patient’s/plaintiff’s experts thought the concentration of TCA was too high, opining that most surgeons don’t use concentrations higher than 30 percent. They also said that Renova should not have been prescribed prior to surgery. Defense experts disagreed and stated that the 50 percent TCA concentration and the use of Renova prior to the skin peel were reasonable and did not fall outside the standard of care.
Most Common Patient Injuries
In 3% of plastic surgery claims, the patient expired as a result of injury. Less frequent patient injuries included retained foreign bodies, wound dehiscence, hematomas, adverse reactions to medication, contractures, and punctures or perforations of an organ (2% each).
Patient deaths were attributed to deep vein thrombosis (DVT) and pulmonary embolus (PE); acute blood loss due to punctures during liposuction; excessive levels of narcotic medications causing respiratory depression; cardiac arrest; malignant hyperthermia; abdominal compartment syndrome; and aspiration pneumonia.
Factors Contributing to Patient Injury
We engage practicing physicians to help evaluate malpractice cases and identify factors that contributed to patient injury. Because multiple factors often contributed to patient injury, the percentages total more than 100%.
41% Technical performance
Factors related to technical performance included performing a procedure on an incorrect body site, misidentifying an anatomical structure, and using poor technique. The physician reviewers found that only 5% of all plastic surgery cases involved substandard care.
A 42-year-old female, 5 feet 4 inches, weighing 192 pounds (BMI 33), requested liposuction of the abdomen. She had liposuction on two previous occasions. The plastic surgeon discussed possible abdominoplasty, but the patient requested only liposuction of the abdomen and flank.
During the preoperative consultation, the risks of the procedures were discussed, including shock, blood transfusions, hematomas, infection, skin loss, and PE. The procedure required five small stab wounds to gain access for infiltration. A total of three liters of standard tumescent solution were injected into the upper and lower abdominal regions and both flanks. Blunt-ended cannulas were used. About 3.7 liters of lipoaspirate were removed.
She tolerated the procedure well, but after an hour in the PACU, the anesthesiologist was called to assess the patient because of difficulty breathing. Her oxygen saturation was 99 percent, and bilateral breath sounds were clear. The abdominal binding was loosened. The plan was to discharge the patient when stable. The patient was discharged three hours later without another physician assessment.
Later that evening, the patient went to the ER and was found to have a pneumothorax. She was admitted to the hospital, where her condition continued to deteriorate. She was taken to surgery the following day (20 hours after admission) and was found to have multiple bowel perforations. She never regained consciousness. The cause of death was sepsis, necrotizing fasciitis, and adult respiratory distress syndrome.
Her family filed a lawsuit alleging negligent performance of surgery leading to bowel perforations and death. Experts were not supportive of the care provided. They stated that multiple perforations in several different areas exceeded the standard risk of the procedure. Nurses were criticized for inadequate monitoring and not bringing the steadily declining blood pressures in the PACU to the attention of the surgeon. The patient was discharged in an unstable condition. The surgeon was also criticized for waiting 20 hours after admission before taking the patient to surgery.
41% Patient factors
Patient factors, which included behaviors and body characteristics, affected the outcome of care, highlighting the important role that patients play in their own care and recovery. Claims were made by patients who were noncompliant with treatment plans, follow-up appointments, and medication plans and by patients who went to other doctors due to dissatisfaction with the care received. By seeking care from other physicians, patients eliminated the plastic surgeons’ ability to address concerns and provide follow-up care. Patient factors also included body characteristics that delayed healing or caused excessive scarring.
A 30-year-old patient (5 feet 4 inches, 147 pounds, gravida 4, para 4) who did not speak English consulted with a plastic surgeon. Their communication took place through an interpreter. The patient was a smoker with a history of depression. The surgeon’s examination documented loss of abdominal muscle tone, diastasis recti, and redundant abdominal skin. He recommended abdominoplasty.
Prior to surgery, the risks and possible complications were discussed, and the patient was advised to stop smoking seven to 10 days prior to surgery. It was later discovered that she continued to smoke during that time. The surgery was completed without complications, and the patient was discharged. At the follow-up exam four days later, the patient’s umbilicus was in the midline, but the incision was black and blue. The surgeon felt this was due to the patient’s continued smoking, and she was again advised to stop smoking.
At the three-week follow-up visit, the wound appeared to be healing, but it was evident that she was still smoking. There continued to be residual bruising, and drainage was noted from the umbilical area. During this examination, she complained of pain and reported that a small section of the incision had opened. She was afebrile. The patient was given instructions for cleaning the wound twice daily. During an exam one week later, a “tremendous” amount of granulation tissue was noted at the site of the wound dehiscence, and the possibility of a surgical revision was discussed.
Six months following the original surgery, the wound had healed, but it had left a large scar. Ten months following surgery, she complained that her incision had not healed. Examination revealed dense fibrotic scar tissue in the abdominal midline and a bulge in the left periumbilical area. The plastic surgeon advised waiting to do the revision and again recommended that she stop smoking.
More than 18 months after surgery, the patient went to a second surgeon and requested a revision to excise the large scar. He advised against surgery due to the size of the scar and the paucity of skin. She then consulted a third surgeon, who excised the scar and found a suture granuloma and neuroma.
The patient filed a claim against the first surgeon, alleging improper performance of surgery. Defense experts gave mixed reviews. They said that the surgeon should have waited six weeks after the patient said she had stopped smoking before doing the surgery, and they felt he should have had the patient sign a consent form that specifically listed the surgical risks of continued smoking. They also said that the surgeon had removed too much skin. They noted, however, that the patient’s smoking was a significant factor in delaying her recovery and healing.
10% Communication between patient or family and provider
Communication was identified as a problem in cases involving inadequate informed consent or discharge instructions. Patients are less likely to comply when they receive inadequate information or if they fail to understand instructions. Communication was also an issue when there was conflict between the patient and physician, such as when the physician was unsympathetic to the patient’s concerns.
A 40-year-old female had bilateral mastectomies for breast cancer. Eighteen months later, she had a transverse rectus abdominis myocutaneous (TRAM) flap reconstruction. The operative sponge count was incorrect, but this information was not documented in the operative record.
The incision was closed prior to taking x-rays. The radiologist reported that no sponge was seen in the post-op x-rays, and the surgeon did not look at them to rule out a foreign body. During the next two years, the plastic surgeon performed additional surgeries on the patient. Her oncologist viewed a CT scan and identified a radiopaque marker but assumed it was outside the patient’s body because the surgeon had never commented on it. Over a five-year period, the patient had five CT scans, and each scan showed the opaque marker in the sponge. Two chest x-rays showed the opaque marker in the right axilla. The patient was never notified.
Several years later, the radiopaque sponge was discovered and removed by another surgeon. The patient filed a claim alleging that the sponge required additional surgery for removal and that it had caused adenopathy and infections. She also claimed that it had caused a higher risk of recurrence of breast cancer. An expert noted that re-exploration of the surgical site was indicated when the sponge was not seen in the original x-ray, adding that the surgeon should also have directed placement of the x-ray plates in the operative area. The surgeon was also criticized for not disclosing to the patient the possibility of a retained sponge.
See the full study for more case examples, frequency of plastic surgery claims over the past 14 years, and risk mitigation strategies.
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 healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.