Keywords: standard of care patient’s right physician’s rights legal contract breach of contract OSHA regulations CLIA regulations

95.1 Introduction

The concept of a “standard of care” (SOC) in medicolegal jargon implies that medical treatments are standardized and that one can reference such standards when considering a doctor’s practice of medicine. The SOC covers all of the acts performed by a physician, whether prescribing medications, delivering surgical services, or managing the psychological relationships that always accompany the delivery of a medical service. For those of us who have practiced medicine for many years, this SOC becomes less clear because a single act performed by a doctor does not have a one-to-one relationship with the impact of that act as it is situated in a time continuum that changes dynamically as the patient’s condition changes or the recovery process ensues. There is also an important distinction between practicing safe medicine (safe for the doctor and more easily associated with an SOC) and the best medicine (best for the patient), which may be related to the best outcome (but is not always the case). The doctor is the expert, yet in the eyes of a jury of the patients’ peers, the outcome may overshadow the best SOC that the doctor can deliver. Such is the nature of the medicolegal issues that confront us all, at one time or another, as we try to “do no harm” in managing our patients.

The SOC may be found in a book rarely, as it varies by geography, country, and the circumstances of the doctor and the patient, and as such it becomes a standard that is more subjective than we care to admit. The legal system in the United States requires that the physician be aware of both the patient’s and the physician’s rights and how they may relate. Once a relationship has developed between a patient and a doctor, it is difficult to sever that relationship, so most doctors should have a plan and the appropriate legal advice to manage a severance of a doctor–patient relationship. In the world of cosmetic surgery, where what we do is most often not critical to the patient’s physical or emotional well-being, we must recognize that our patients come to us with some degree of dysmorphia with the sole goal of self-improvement. We, in effect, become the intermediaries between the patient’s goals and a reality that may not reflect realistic expectations. The burden to bridge this gap is ours alone as we move forward with whatever plan we work out with the patient.

95.2 Contractual Agreements

When a doctor and a patient develop a plan of treatment, they enter into a legal understanding that binds the doctor, contractually, to a spoken agreement that may not, for all practical purposes, be defined in a written contract for services. There is, nevertheless, an obligation of both the doctor and the patient in such a binding contractual agreement for services. The doctor has the burden to provide full information about the services that the practitioner will supply. This can be difficult, at times, as a fully informed consent might reflect risks that are so statistically small that discussing them is impractical, so the doctor must select the appropriate information to convey to the patient. From a legal point of view, the appearance of some outlier complication may be held to a reasonableness standard. The patient also has an obligation to behave in a manner that allows the doctor to address the primary plan and the consequential results of variations from the primary plan that arise from complications resulting from treatment. The doctor is held to a much higher standard than a plumber with a degree of sensitivity that reflects that this is a human being with emotions, pain thresholds, and feelings, not a broken sink. The patient must cooperate and follow the rules defined both orally and in written format by the doctor, which is the basis of his or her treatments. If a patient fails to adhere to these rules in time or in manner, then the responsibility falls upon the doctor to appropriately notify the patient of his or her breach of such rules, in writing.

When a plaintiff feels that the medical hair transplantation or, for that matter, any procedure result was not as promised, there may be a choice available to the plaintiff of seeking a breach of contract action or some tort action to litigate—usually one of negligence. Most suits against hair transplant practitioners are brought “in tort.” Such a strategy allows for the ability to seek increased monetary damages and, in some cases, even punitive damages.