Legal interactions: depositions and narratives

Much of the correspondence between the plastic surgery practice and an attorney may be in their request for an official narrative outlining care, past treatments, future concerns, and specific questions the attorney might pose. The medical narrative should be factual and list what sources are used and what the report is based on. One should be honest in describing past and future concerns and not be too overreaching or inadequate in description. It is common to cite that your opinions are based on a review of certain documents, discussions with the patient, and the conclusions are based on training and experience. Depending on state law, there is usually a customary fee for such a narrative, which should be collected in advance of any dictation to the record. It is important to cite when references are used, for it is not uncommon to be given certain documents to help influence your opinion. When all these documents are subsequently reviewed, opinions may differ from the original narrative, which can now be explained by specific lists of information reviewed.

Tort law: negligence, malpractice

Tort law is the basic area of the law covering negligence and malpractice. There are four requirements of the negligence action. The first area is a duty to provide care and acts in question. The second is that duty is breached, usually in a sub-standard way. The third requirement is that the breach is directly responsible for whatever damages occur. This is called proximate cause. And the fourth requirement is that there are damages as the result of the prior three requirements. The proof and arguments surrounding these four elements comprise a malpractice claim. Other legal interactions will also involve your testimony establishing these four elements. An example would be a dog bite resulting in a lawsuit. You have surgically repaired the laceration and now must testify that this injury is from the dog and the damages that you describe are directly the result of the bite. While this may appear ridiculous, as these questions are posed to you, you can now see that the three elements of this tort case can be established. The first element of that duty might be to protect people from the dog.

Informed consent

The doctrine of informed consent is a necessary part of both legal interactions and patient care. There are two standards utilized for informed consent. A few states utilize the reasonable “doctor standard”, which states that information a reasonable physician thinks is important must be presented to a patient for their informed consent. More commonly, a reasonable “patient standard” is used. The standard states that all information a reasonable patient would want and need to know should be presented as they make their informed choice. There is much confusion about how much information should be outlined and in what fashion. There are those who believe the informed consent process should be videotaped as there is always a question after-the-fact about what was discussed or presented. This is usually unnecessary as documentation should include the process of information presented, questions asked and answered, and finally an understanding of what the physician can and cannot do. There are many styles of learning and current thinking is to include three styles during the informed consent process. There are visual learners, auditory learners, and kinesthetic learners. The visual learner would want to see a picture, photograph, or some demonstrative example of what is being proposed. The auditory learner wants to listen very carefully to recommendations, the surgical procedure, pre-and postoperative instructions, reasonable expectations, alternatives to care, and inherent risks and complications. The kinesthetic learner is looking for how all of this affects them personally. The goal of informed consent is reaching high levels of understanding, which may be reached by combining all three learning styles throughout the process of informed consent. It is not a signed document itself, but the process of understanding documented by the consent. I believe the surgeon has a responsibility to outline the risks and hazards of the proposed procedure. It is also suggested to develop a team of surgeon, nurse, coordinator, and others to achieve this goal. There are some patients who never reach a complete understanding of the informed consent process and it is recommended that surgery then should not proceed. It is also recommended that multiple visits and discussions be utilized allowing appropriate time for discussions at home, reflection on goals, and adequate questions to be answered before proceeding with a nonemergent procedure.

Privacy law

Privacy law is intended to protect patient information. This includes their medical information, photographs, lab results and correspondence. HIPAA covers many protections for the patient. The practice has an obligation to explain and document the patient’s understanding and acceptance. There is a duty to secure their information, and even pursue those who violate such protections. The practice will have an obligation under new “red flag rules” to check identity of patients with their coverage, further protecting the patient against identity theft. The plastic surgery office must be careful when using patient information or photography in a commercial way, such as on a website, advertisement or patient outcome booklet, shown to prospective patients. A breach of privacy is not covered by your malpractice insurance and any judgments as a result of this breach must come from you alone and not your insurance company. It is not unusual to have a claim joined to a negligence claim that patient information was not protected. This often adds to the stress of a lawsuit and may add incentives to settle the claim. If you have patient permission to show such information, a specific written consent for commercial use must be signed by the patient. You can help yourself and your practice by adopting HIPAA rules,¹ identifying a “red flag” office employee who can safeguard patient identity, and being very diligent about obtaining consent forms for treatment, release of information, specific commercial use and photographic consents. Areas of concern are thus social networks and blogs, such as Facebook and Twitter. There is risk of a surgeon or practice describing “a day in the life of a plastic surgeon” on a blog, but that day’s patient may recognize him or herself, even though no name is mentioned.

Warranty law

Warranty law involves two specific types of warranty issues; “express warranty” and “implied warranty”. You should understand that warranty issues are not covered by your malpractice policy. An express warranty utilizes a demonstrative part of the record to create a guarantee towards a result. This can be accomplished by including a photograph that the patient brings of a result they seek, or it may change created results that are made a permanent part of the business record. It is well accepted among physicians that there are no warranties or guarantees towards a result, since healing can be so specific and usually out of the physician’s control. While the visual aids are important in educating the patient about procedures and expectations, the practice should be very careful not to establish a guarantee of a certain result. Patients seemingly have unrealistic expectations, as the media and other factors portray certain social appearances. Utilize all educational tools including imaging to help the patient understand the procedure and the results but make sure you have both a disclaimer and documented discussions concerning realistic expectations.

The implied warranty can be more difficult. This is not based on something added to the chart that is tangible but rather an understanding that the patient presents to you that you must consider and address. Examples might be the fact that 2 weeks after a major surgery, the patient is expecting to travel to a family or business retreat. There is a possibility that the patient reasonably may be able to attend such a function, but are you willing to guarantee they will heal appropriately to do so? This becomes the main issue of these implied warranties. The patient discloses a requirement that they present. You should be careful to disclose and document the many reasons that might interfere with their requirement. Possibly changing the date of surgery or other considerations should be addressed. If nothing is discussed or documented, and the patient misses their major event, it could be judged as your fault and you would be responsible for any financial losses they incur. This is becoming more common, as patients seek and demand quicker recoveries, adding procedures at the last minute, all within a shorter and shorter timeframe. Implied warranties could arise from time issues, financial estimates and costs, future care and treatments, and issues concerning results and expectations. Make sure the entire office team discusses patient comments and interactions because it is not uncommon to have a patient disclose varied demands to a receptionist or coordinator and never mention them to the surgeon. Include a paragraph in your informed consent document as well as your financial agreement that no warranties express or implied are present and that the patient understands and agrees with this.