Avoid Medspa Litigation Claims = Provide Comprehensive Information

Exceptional patient services will do more than just keep your patients happy, they'll also keep you out of court (or may your stay much shorter).

In a recently decided case of James v. Decorato, the defendant medical practitioner was absolved of liability after showing to the court the the patient has been adequately informed about the procedure that she will be undergoing.

Their case stemmed when the patient and plaintiff Rebecca B. James sued the defendants John W. Decorato, M.D. and Aesthetic Pavilion, LLC for alleged negligence and malpractice by the latter. In her complaint, Rebecca claimed there was negligence in the performance of various cosmetic surgeries which included liposuction, blepharoplasty, lipoplasty, autologous gluteal augmentation with fat grafting, submental and neck smartlipo, bilateral transconjunctival lower blepharoplasty with CO2 laser resurfacing, and autologous upper and lower lip augmentation with fat grafting.

She alleged that there the malpractice resulted in the formation of excessive and severe scarring, non-uniform appearance of her abdomen, concave left inner thigh with pain, hypo-pigmented skin under eyes leaving non-uniform skin color on the face, among others.

Further, she said that Dr. Decorato violated the Public Health Law when he allegedly failed to disclose alternatives, risks and benefits that may arise after the treatment. She said that had she known of them, she would not have undergone with the treatments altogether.

In an answer, Dr. Decorato said that the plaintiff was able to sign multiple consent forms which outlined the risks and effects that may happen after the treatment. The defendant doctor also argued that the plaintiff's argument must be summarily dismissed because they only stemmed out of her dissatisfaction with the results of the procedures.

In support, Dr. Decorato submitted to the court the examination done by Dr. Theodore Diktaban, a certified Plastic, Reconstructive as well as Head and Neck Surgeon. Dr. Diktaban indicated that he was able to review the consent forms signed by the plaintiff and found them all clear and complete.

According to Dr. Diktaban's affidavit,

The forms adequately provided for the proposed procedures, alternatives thereto, and the reasonably foreseeable risks and benefits associated therewith, including the need for revisionary surgery. The lack of an informed consent could not be a proximate cause of any of plaintiff's subjective dissatisfaction, which she classifies as injuries. Regarding the issue on malpractice and negligence, the pre-and post-operative care rendered to plaintiff comports with good and accepted medical practice.

He further opined that the results of plaintiff's surgery were devoid of any functional deficits, except for the purported and subjective paresthesias of the left medial thigh.

These claims were opposed by the plaintiff Rebecca and presented the statement of a cosmetic surgeon, Dr. Richard Marfuggi. He claimed that after examining Rebecca, he can say that "with a reasonable degree of medical probability, the complications experienced by plaintiff were the result of Dr. Decorato's failure to follow good and accepted practice".

According to the Supreme Court, the basis for establishing the liability of the physician is the departure of the physician from accepted community standards of practice and this was the proximate or direct cause of the plaintiff's injuries.

The Supreme Court sided with Dr. Decorato and summarily dismissed the case. Dr. Decorato, with the affirmation of the statement of Dr. Diktaban, was able to show that indeed he did not deviate from accepted medical procedures. The Supreme Court noted that the plaintiff's claim of "lack of informed consent" has not been proven. Instead, Dr. Decorato was able to produce in evidence the fact that Rebecca was able to sign the consent forms.

On the other hand, the plaintiff Rebecca and Dr. Marfuggi's affidavits did not show any medical evidence establishing that Dr. Decorato was indeed negligent. According to the Supreme Court, Dr. Marfuggi's recitation of facts failed to address the concern of whether or not this was a departure from accepted practices.

Note to self: make sure that all forms are clear and complete.

Plastic Surgery & Malpractice Lawsuits In The US & Canada

If you're a plastic surgeon in the US and you've been practicing for a while, the odds are good that you've been sued by a patient.

In the US there are about 95 medical liability claims filed for every 100 physicians—or almost one per doctor—and nearly 61% of physicians age 55 and older have been sued, according to a report released by the American Medical Association and based on a survey of 5,825 “non-federal patient care physicians” conducted in 2007 and 2008.  The survey, which included doctors practicing across 42 specialties, found that 42.2% of the respondents had a claim filed against them at some point, with more than 20% of physicians sued at least twice.

The most-sued specialties were obstetricians/gynecologists and general surgeons, with 69.2% of them being sued. (Psychiatrists were the least sued at 22.2%...  probably because they can use the Jedi mind tricks to mitigate their risk by keeping their patients happy.)

The study also found that 47.5% of male physicians had been sued, with 26.3% having been sued twice; and that 23.9% of female doctors had been sued and only 9.4% had been sued twice... andticdotal evidence that female physicians may be able to manage patient interactions better post treatment.

This brings up some of the interesting differences between practicing in the US and other countries. Certainly the US is letigious, perhaps the most country in the world. (If that's not the case, please comment.) I've posted before about how our Members outside the US can end up handling unhappy patients.

Read Learning From Physicians World Wide: Unhappy Patient? If You're In Mexico Just Call The Cops

In Canada under the single payer system, the numbers are dramatically different for a number of reasons, all of them economic. Between 2002 and 2006 the C.M.P.A. reports only 5246 lawsuits were filed against doctors in Canada: only about a 1000 claims per year.

Why?

First, In Canada, court awards are much lower than awards for similar injuries from courts in the United States. Cases that might be successful in the U.S. are simply not economically feasible to pursue in Canada.

Second, In Canada, most doctors are defended by a single organization, the Canadian Medical Protection Association (the C.M.P.A.) with a couple of billion of dollars in the bank that can be used to defend physicians. The C.M.P.A. reports it's success rate in defending claims brought against doctors. More than 3800 of the 5000 claims were dismissed or abandoned because the victim or their family quit or ran out of money, or died before trial.

The result? A couple of online articles on this subject express these stats: more than 5000 lawsuits filed against Canadian doctors, only two percent (2%) resulted in trial verdicts for the plantiff and for the few plantiffs who won at trial, the median damage award was only $95,500. Just try and get a US lawyer to go for that. (If you're a physician in Canada and you can clarify this, please leave a comment.)

There are advantages to being a physician in the US for sure, but there are also risks. The numbers are bigger on both ends.

SIMON Says: “Run Forrest Run!”

Saying ‘No’ to Prospective Cosmetic Medical Patients

Certainly, everyone is entitled and should have access to cosmetic medical and surgical services. However, depending on your particular risk tolerance, there are certain times when you might want to just 'pass' on treating a patient.  Knowing which patients to sidestep is a gray art and is frequently based on hunches and ‘gut’ feelings.  This subtle impression, as described in Malcolm Gladwell’s book 'Blink: The Power of Thinking Without Thinking', is correct more often than not.  However, there are more objective guidelines available to help decide whether or not to dance with a particular patient. Several of these tips have been developed and expounded upon in numerous papers by Dr. Mark Gorney and in the book 'The Patient and the Plastic Surgeon' by Dr. Robert Goldwyn.  Consider running for the hills if:

• The patient is a SIMON – single,immature, male, overly expectant, and narcissistic.  Even worse if they answer to SIMON-SLAP (SIMON + still lives at parents). 
• You don’t click with the patient – or just plain dislike them
• The patient is critical of previous physicians but thinks you hung the moon.
• The patient is rude to your staff.
• The patient demands a guarantee.
• You are asked to do something you can’t deliver.
• Anyone in a hurry to have surgery – gotta do it now!
• The surgiholic patient.
• Patients wanting procedures because they are prodded by friends or family members.
• The out-of-town patient who has to bolt before you are comfortable with them leaving.
• The patient who is vague, indecisive and leaves the driving to you.

Unfortunately, patients don’t walk into your office with a label on their shirt saying ‘I’m going to be a real problem’.  Listen to the voices in your head and apply the above principles.  Cosmetic medicine is supposed to be fun – don’t let a rogue patient slip through the cracks and haunt you.  It just isn’t worth it!

Learning From Physicians Worldwide: Unhappy Patient? If You're In Mexico Just Call The Cops.

Medical Spa MD's physician community is worldwide. This poses some interesting challenges and some opportunities to learn how medicine is practiced elsewhere.

If you're not already aware, Medical Spa MD has physician members from 70+ countries... meaning that there are a number of differences in the way that medicine is practiced across the community. The map above shows some of the distribution of Members by location. The reason that I bring this up is to highlight that there are differences between where and how members of our community practice medicine. 

Let me tell you a story or two about some of these differences.

In Mexico, plastic surgeons are less worried about being sued.

A few years ago at a major cosmetic medical conference in Las Vegas with very well known physicians presenting. I atteneded a presentation by a plastic surgeon from Mexico discussing one of the new (at that time) suture plication techniques for facelifts. I'll call the presenter Dr. M.

During this surgeons presentation, Dr. M discussed case study after case study in a way that made it apparent to every other doctor in the audience that he was in fact 'experimenting' on patients in order to guage how results would differ with different techniques.

Dr. M was detailing how he had arrived at what he felt was the optimial technique by identifying likely canditate patients, offering them a greatly reduced price, and then basically trying out a different technique to determine an outcome. The clear message was that he was just trying different things out to see what worked and what didn't work, i.e., experimenting on patients.

You could see a lot of slightly raised eyebrows in the room.

As is usual after a conference presentation, a group formed around Dr. M after his presentation to ask follow up questions or make a connection. After a couple of handshakes the questioning started to revolve around a very specific theme. The US physicians (the very clear majority since we were in Vegas) began asking questions that expresed a large amount of skepticism that they could have interpreted the presentation correctly. Namely, that any plastic surgeon could be performing experimental treatments on patients in the way that he'd described. (I should clearly state that Dr. M indicated that he clearly informed all of these patients of what he was doing and got their consent.)

The physicians weren't really challenging this physicians techniques or professionalism as much as questioning Dr. M about his patient practices and wondering how he could actually get away with this with his malpractice insurance and medical regluatory agencys.

The questions started to revolve around patients who were unhappy with their outcomes and how this physician was handling them. Dr. M freely admitted that there had been any number of failures and that some patients had had poor outcomes and were unhappy but expressed the sentiment that that was really not a big deal.

The US physicians were somewhat incredulous and one slightly exaperated physician asked, "What do you do if they come back to your office and complain?"

"We call the police," he said nonplussed.

Raised eyebrows all around.

Now, to be fair, Dr. M's answer was really based on his perception that the question was about a patient raising hell in his clinic and that answer would be the same answer that any physician would give, but the incredulity that prompted the question was really about how any doctor could get away with performing experimental procedures without being sued out of existence.

What's even more eye-opening to a lot of American physicians was that Dr. M had never been sued.

If you're a plastic surgeon in the US and you've been practicing for a while, the odds are good that you've been sued by a patient and if you're practicing new treatments that could be defined as experimental as a plastic surgeon, you're going to be sued... and dropped by your malpractice carrier. It seems that if you're a plastic surgeon in Mexico you don't have the same considerations to deal with. 

Does it mean that plastic surgery outside the US is less safe? Possibly, since there's no other country that regulates the practice of medicine the way that the US does, but it's also the case that many of the 'medical tourism' destinations are staffed by US trained physicians. (If anyone has stats on this I'd be interested to see them.) There are a growing number of hospitals outsourcing xrays to radiologists in India, medical tourisim is increasingly mainstream, and US physicians are traveling outside of the US for trainings.

Medical Spa MD has members around the world. If you're smart, you'll take the opportunity to learn from everyone, no matter where they are.

Read: Plastic Surgery Malpractice Lawsuits In The US & Canada

Read: "Hello Doctor. I Wouldn't Hesitate To Sue You."

Defensive Medicine: New Survey

25% of every healthcare dollar spent with no purpose other than CYA defensive medicine and lawsuit protection.

Here's a quote from a survey about defensive medicine published by Jackson Healthcare that looks at defensive medicine and unnecessary testing.

The survey of more than 3000 physicians showed that 92% admitted practicing defensive medicine and that, based on physician responses, the annual estimated cost of defensive medicine in the US each year is $650 billion to $850 billion – accounting for $1 out of every $4 spent on US health care.

Of course, the physicians in the survey shouldn't be trusted since they're obviously biased and worried.

Instead, you should listen to the malpractice trial lawyers who have a much clearer opinion about why physicians order so many unnecessary tests and why 'defensive medicine' really doesn't impact the availablity of health care. Here's what lawyers think:

Lawyers who represent patients say one way to slash the exorbitant cost of health care would be to cut down on errors doctors make so that fewer cases wind up in the legal system. The American Association of Justice, an advocacy group for plaintiffs' lawyers, suggests that hospitals should more aggressively report mistakes and state medical boards should impose stiffer penalties on doctors who make them.

As a matter of public policy, it might make sense to spend less money as a society on unnecessary tests. But Jack McGehee, a Houston-based plaintiffs' lawyer, says it is difficult to convince ailing patients that their doctor should order fewer tests.

Ah the clarity that lawyers bring to an argument. It brings a tear to my eye.

While your cosmetic practice is probably not ordering tests, the same basic principals apply. Patients looking for vanity cosmetic treatments can be even more demanding of perfection since they're no expectation other than a perfect outcome.

Anyone have experience with this in a cosmetic practice?

Study Shows Disturbing Medical Lawsuit Numbers

Frivolous or not, harsh statistics show lawsuits are running rampant against physicians...

There are about 95 medical liability claims filed for every 100 physicians—or almost one per doctor—and nearly 61% of physicians age 55 and older have been sued, according to a report released by the American Medical Association  and based on a survey of 5,825 “non-federal patient care physicians” conducted in 2007 and 2008.
The survey, which included doctors practicing across 42 specialties, found that 42.2% of the respondents had a claim filed against them at some point, with more than 20% of physicians sued at least twice.

As physicians age, it is more likely they will get sued, according to the survey, which found that only 15.3% of doctors under age 40 had been sued and only 4.2% had been sued twice; 45.3% doctors between 40 and 54 had been sued, with 22.3% having been sued twice; and 60.5% of doctors 55 and older had been sued, with 39.2% having been sued at least twice.

The study also found that 47.5% of male physicians had been sued, with 26.3% having been sued twice; and that 23.9% of female doctors had been sued and only 9.4% had been sued twice.

The most-sued specialties were obstetricians/gynecologists and general surgeons, with 69.2% of them being sued; while psychiatrists were the least sued at 22.2%.

In another study, the Illinois State Medical Society and the ISMIE Mutual Insurance Co. malpractice insurer surveyed some 1,100 Illinois physicians between June 21 and July 2, and 66% said they have personally reduced or eliminated high-risk services or procedures because of the threat of being sued, 82% said they viewed each patient as a liability risk, and 89% said that liability concerns caused them to “order more tests than are medically needed.” 

Guest post by Joy Tu of Medical Justice.

Submit a guest post and be heard.

American Laser Clinics Trouble In Iowa

Armed guard protects ALC patients from the supervising physician who is supposedly overseeing their treatment.

American Laser Clinics operations are stopped by a medical board yet again.

This reminds me of the armed guard that American Laser Clinics stationed in the laser clinic to prevent the supervising physician from seeing patients... while they treated those very same patients under his 'medical direction'.

According to the Quad City Times:

A doctor who led a medical spa in Bettendorf has been sanctioned by the Iowa Board of Medicine.

Anthony O. Colby, of Iowa City, was the medical director and/or supervision physician at American Laser Center in Bettendorf, Coralville and West Des Moines, documents from the board said. The Bettendorf location is at 852 Middle Road.

The center’s West Des Moines office was also issued a cease-and-desist order by the board, saying that the center must stop “the unlawful practice of medicine in Iowa,” records indicate. The board says a person at that office performed medical services without proper physician oversight.

A spokesperson for American Laser Center, a chain with 225 clinics nationwide, could not be reached for comment. Colby could not be reached for comment, either.

According to board documents, Colby has insufficient training or experience to supervise individuals performing medical aesthetic services in Iowa. The board also alleged that Colby failed to properly supervise those who performed such services.

Specifically, at least one patient suffered serious burns on her arms after receiving treatment for hyper-pigmentation on her face and arms by a person under Colby’s supervision.

The board ordered that Colby not serve as the medical director for a medical spa that offers specific types of services or supervise anyone who performs those services.

He was ordered to pay a $5,000 fine and warned that any more violations could result in further disciplinary action.

As for American Laser Center in West Des Moines, the board determined that non-physicians were performing examinations, diagnosing medical conditions, offering treatment recommendations and performed medical procedures, including the use of lasers for the treatment of hyper-pigmentation and cellulite removal.

Medical Spa MD: Burned out & depressed plastic surgeons more likely to commit medical errors?

Surgeons who are burned out or depressed are more likely to say they had recently committed a major error on the job, according to the largest study to date on physician burnout.

The new findings suggest that the mental well-being of the plastic surgeon is associated with a higher rate of self-reported medical errors, something that may undermine patient safety more than the fatigue that is often blamed for many of the medical mistakes.

Although surgeons do not appear more likely to make mistakes than physicians in other disciplines, surgery errors may have more severe consequences for patients due to the interventional nature of the work. Some estimate that as many as 10 percent of hospitalized patients are impacted by medical errors.

"People have talked about fatigue and long working hours, but our results indicate that the dominant contributors to self-reported medical errors are burnout and depression," said Charles M. Balch, M.D., a professor of surgery at the Johns Hopkins University School of Medicine and one of the study's leaders. "All of us need to take this into account to a greater degree than in the past. Frankly, burnout and depression hadn't been on everybody's radar screen."

Nine percent of the 7,905 surgeons who responded to a June 2008 survey commissioned by the American College of Surgeons for a study led by researchers from Johns Hopkins University School of Medicine and the Mayo Clinic reported having made a major medical mistake in the previous three months. Overall, 40 percent of the surgeons who responded to the survey said they were burned out.

Researchers asked a variety of questions, including queries that rated three elements of burnout -- emotional exhaustion, depersonalization and personal accomplishment -- and others that screened for depression.

Each one-point increase on a scale that measured depersonalization -- a feeling of withdrawal or of treating patients as objects rather than as human beings -- was associated with an 11 percent increase in the likelihood of reporting an error. Each one-point increase on a scale measuring emotional exhaustion was associated with a 5 percent increase.

Mistakes also varied by specialty.  

Surgeons practicing obstetrics/gynecology and plastic surgery were much less likely to report errors than general surgeons.

Researchers acknowledged the limitations of self-reporting surveys, saying they couldn't tell from their research whether burnout and depression led to more medical errors or whether medical errors triggered burnout and depression among the surgeons who made the mistakes.

The results are being published online on November 23 in the Annals of Surgery and will be published in the printed journal in an upcoming issue.

Notably, the research shows that the number of nights on call per week and the number of hours worked were not associated with reported errors after controlling for other factors.

"The most important thing for those of us who work with other surgeons who do not appear well is to address it with them so that they can get the help they need," says Julie A. Freischlag, M.D., chair of the Department of Surgery at the Johns Hopkins University School of Medicine and another of the study's authors.

via sciencedaily.com

Perhaps the most relevant items here are the decreased reporting of problems by plastic surgeons and the fact that 'depersonalization' has entered the discussion.

I'm really curious about what plastic surgeons think of this study.