Liposuction: Medicolegal Considerations

Fig. 14.1

Deformity versus perception of deformity

The liposuction patient with minimal contour issues and “cellulite” concerns might be such a patient. It is questionable whether significant improvement and resolution can be achieved when minimal deformity is perceived as significant and life altering. I have seen cases where the areas were dramatically improved yet the patient was totally dissatisfied and led to litigation. This chapter will explore methods of avoiding problem patients and lastly managing litigation issues. The patient who has major concern for what you assess as a very minor deformity falls on the left side of this chart and should raise concerns about accepting. Perhaps additional visits with specific discussions about not being able to achieve their goal would be helpful. The prospective patient with significant asymmetric lipodystrophy who acknowledges they would like to see improvement and any level would fall on the right side of this chart and should be an acceptable patient choice. While this is not exact it can be helpful along with other interactions to assist in patient selection.

It is widely recommended to see patients at least twice before scheduling and performing surgery. These important visits allow a dialogue and exchange to elicit goals and expectations as well as specifically addressing such concerns. The Pennsylvania Supreme Court has held that there is a duty for the surgeon to interact with a prospective patient answering and discussing questions about an upcoming procedure. This suggests that a team approach consisting of a nurse, patient coordinator, and surgeon although appropriate cannot replace the surgeon’s responsibility to direct discussions [6]. There is another factor that involves when the patient becomes more difficult either by stated goals or behavior. A trap might be to create the informed consent document more stringent outlining concerns and problems. Another solution might be to charge an increased amount acknowledging the specific difficulty the patient presents with. The concern is both apparent solutions acknowledge your assessment that goals and expectations are more difficult and perhaps a prudent surgeon would not have accepted the patient. What I am suggesting is by adding language or cost you may be admitting your lack of confidence in reaching the patient’s goals. You may believe such actions help you should problems arise, but in fact these actions may work against you should litigation ensue.

I have suggested for many years to only accept prospective patients you “like” [6]. The initial consultation and subsequent interactions with your office can define the prospective patient. Listen to your staff’s comments about how difficult the patient is and whether you can ever reach their goal without extreme stress. Let’s say after two visits along with your staff waving red flags at you; you acknowledge this patient may not be suitable for your practice. How can you appropriately decline to care for this prospective patient? I have used the phrase “I am not skilled enough to have you reach your expressed goals with this procedure.” I have never regretted declining to care for such a patient although recognizing often a difficult decision. Patient selection is the key to avoiding medical legal issues. Patients do not pursue physicians they like and though more the doctor-patient relationship is good and preserved the less likely problems will arise even though complications might occur.

Informed consent is a process and not specifically the signed document in the record. The process of informed consent should include a number of consultations suitable for you to assess the prospective patient’s goal and expectation as well as a dialogue outlining the procedure course, general risks, inherent risks, and additional instructions. The two standards available are information necessary for a “reasonable patient” to make an informed decision or information discussed that a “reasonable physician” would present. Explore your state’s requirements for informed consent and whether there are described panels of necessary information to be included. There is often a balance between presenting a lot of information necessary to reach the goal of informed consent and not overwhelming a patient with protective information. Many of the available informed consent documents avoid legalese expressions and provide important information the patient can rely on making their experience improved. Litigation specifically from a lack of informed consent is actually rare but included in almost every lawsuit’s claims. Just because a complication is listed may not necessarily protect you against a negligence claim. Use the informed consent process to flush out difficult and unrealistic patients.

Specific areas of informed consent include a revision policy and financial issues. I suggest there be a written revision policy an example of which might be no surgeon’s fees for revisions within a year for patients who have met all their postoperative visits, instructions, and aftercare. It is also important to disclose their may be additional fees where anesthesia and facility costs are additionally required. This language hopefully prevents the patient who misses frequent visits, does not follow instructions, and then appears demanding a secondary procedure for correction.

Financial issues are similarly very important to discuss. Costs are to be paid in advance and if by credit card the patient waves HIPAA should a challenge to payment ensue. There have been cases where care has been provided and the patient challenges the payment on the credit card seeking a refund. When the credit card company asks your input about the service provided, HIPAA may prevent you from responding [7, 8]. This clause allows you to appropriately challenge the patient’s request for a payback of their money for services already provided. There is also confusion about what might be included under coverage initially and for a revision. There should be a clear description of charges related to surgeon’s fee, anesthesia, facility charge, lab and/or x-ray, and any additional items.

It is also wise to document that usually third party coverage is not available for aesthetic procedures. I have used a separate paragraph stating it would be fraudulent to submit a claim for such an aesthetic procedure and therefore no assignment will ever be accepted, which is irrevocable. There have been examples of fees collected for a cosmetic surgery procedure and the patient submits the claim to their insurance company which the surgeon participates. Surprisingly it is covered and the surgeon must now refund the collected patient money and accept whatever the insurance company dictates. Having a documented discussion in advance should prevent such behavior.

There are general precautions involving photography and patient communications. It is advised to have a communication agreement in which the patient consents to how they may be contact whether by email, texting, social media, workplace, or regular mail. This should be updated frequently and adhere to. The use of any photography should be well understood requiring HIPAA consents for any photographs of the patient as part of the medical record and a commercial HIPAA photography consent should any patient results be utilized for advertising, marketing, or educational endeavors. The specific use for commercial pictures requires a description of where it will be used, the duration of use, distribution, and intended use all with scrubbing metadata from the photograph [6].

The informed consent process should cover general risks as with any surgery including but not limited to infection, bleeding, and the need for secondary surgery, delays in healing, unacceptable scarring, and the possibility of additional procedures. There are many other general risks to be considered as well as inherent risks specific to liposuction and ultrasound-assisted liposuction. I would be careful to not allow these risks to be minimized, allayed, or compromised by language or interactions. I have heard cases where the patient – plaintiff – stated “I’ve never had these happen but I have to tell them to you” or “these are so rare, I wouldn’t worry.” Such comments might lead to the occurrence of a complication clearly included, understood, and acknowledged by the patient who still believes if the surgeon were not negligent such complications would never occur. This sets up the most difficult condition of having to be perfect in all areas despite the patient’s problems, health status, or unrealistic goals. Complications and inherent risks are presented for a reason and should demonstrate that no procedure is without risk. The informed consent process should help achieve a balance between benefits of any procedure and risks discussed. The more risks applicable the more questionable the procedure becomes.

Inherent risks of liposuction should be discussed specific to the patient. These may include contour irregularities, laxity, and perception of increased cellulite, adherence, and asymmetries. Ultrasound-assisted liposuction may require additional disclosures about burns of the skin and deeper tissue due to ultrasound energy and potential cannula fragmentation. Ultrasound-assisted liposuction has been utilized for many years and risks of fragmentation or other unknown effects of ultrasound therapy usage remain rare. Patients seldom recognize their asymmetries in advance and it is wise with the use of photography to present anatomy in advance demonstrating their variances [6]. Showing the same variations after surgery can be interpreted as making excuses! Excess removal below the buttock fold may assist in buttock laxity and droop. The ultrasound-assisted liposuction incision may be more vulnerable to scarring and thinning and its placement should therefore be discussed with the patient.

Anesthetic considerations are also very important. Abdominal liposuction in a patient with abdominal breathing such as with a LMA use may expose the patient to fascial penetration with disastrous results. Be cognizant that tumescent injections with a smaller multi-port cannula may be easier to perforate muscle in a patient with abdominal breathing motion. Injury to deeper superficial structures has always been a component of informed consent while deeper abdominal cavity penetration falls outside of an acceptable range of complications. Great care should be exerted to know exactly where the cannulas are at any given time [6].

Similarly the operating room environment should receive some comment. Many patients undergoing liposuction are unclothed and susceptible to lower operating room temperatures. Care should be given to either warm up the room or use other technology to keep the patient appropriately warm without compromising sterility. The volumes of tumescent fluid utilized also deserve a comment. It may be important to consider the type and volume of Xylocaine and epinephrine utilized in tumescent fluid being appropriate for the patient’s age and medical history.

Aftercare involving garments should be discussed as there have been a number of compression deformities appearing to be the result of a too tight or folding garment. The type of compression and pitfalls should be discussed in document. In addition aftercare might consist of gentle massage to help reduce or prevent adherence which may cause contour irregularities. Demonstrating to the patient the type of massage, duration, and intensity would be helpful.

Large-volume liposuction maybe defined as greater than 5 liters of aspirate in one setting has its own standards that help reduce complications. These precautions include monitoring the patient in a controlled environment for at least 23 hours. The third space fluid shifts can result in significant complications and death. The levels of Xylocaine and epinephrine used in the tumescent fluid infusions must be assessed to avoid overdosage of either drug.

Nov 4, 2020 | Posted by in Aesthetic plastic surgery | Comments Off on Liposuction: Medicolegal Considerations
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