Professional and Legal Considerations in Cosmetic Surgery

Mark Gorney MD

Unfortunately, in the lengthy process of postgraduate surgical education, the vast majority of candidates for certification by the American boards of plastic surgery, otolaryngology, or dermatology typically fail to acquire any real feeling for the interface between cosmetic surgery and mental health. Virtually all professionals enter the early part of their careers filled with knowledge of the latest techniques on the cutting edge of their specialty, but have only the vaguest sense of the critical importance of appropriate patient selection criteria for cosmetic procedures—an absolute essential in the building of a successful career.

There is little disagreement between cosmetic surgeons and mental health professionals that patients who display symptoms of severe psychopathology constitute poor candidates for aesthetic surgery. However, many psychiatric diagnoses, including body dysmorphic disorder and eating disorders (as discussed in Chapters 14 and 15) come in several shades of gray. Patients who present with mild forms of psychopathology likely present the greatest challenge to the surgeon’s psychological assessment skills. To make matters even more confusing, most experienced cosmetic surgeons can point to patients in their practices who presented with minimal to moderate deformity but excessive concern with their appearance, but who, after a well-executed procedure, displayed psychological improvement.

How should the surgeon treat the patient who presents with significant psychological distress? As suggested in Chapter 16, learning to say “no” to a patient’s requests for surgery may seem easy, but it is far more complicated then it appears. Referral to a psychiatrist or psychologist often results in an angry patient who walks out and will likely, sooner or later, have the procedure performed by another professional. Perhaps the most reasonable course left to the surgeon is to learn, as early as possible in his or her career, to carefully select patients among the shades of gray, and, where uncertainty exists, to fall back on the counsel of more experienced colleagues or a trusted mental health professional. Failure to do so universally produces headaches for the surgeon and his or her staff far beyond the value of any surgical fee. In its ultimate (but thankfully rare) form, ignoring these red flags has cost at least five surgeons their lives in the past two decades. All were shot to death by a disturbed patient dissatisfied with his or her results.

The issue of patient selection is further compounded by at least two factors. The first is the unending love affair between the mass media and the universe of cosmetic surgery and related treatments. As discussed by Sarwer and Magee in Chapter 3, cosmetic surgery is an incredibly popular topic for both the print and electronic media. The avalanche of publicity is inevitably accompanied by the usual ballyhoo promising improvements as dramatic as they are trouble-free. This mass media attention likely contributes to increasing numbers of women and men who seek cosmetic procedures each year. The second factor is political. In the late 1980s, the United States
Federal Trade Commission embarked on a misguided attempt to reduce the cost of medical care by forcing specialty societies to rescind their traditional prohibition of public advertising. It was their theory that advertising would create greater competition and lower medical costs. The first of these premises resulted in a flood of deceptive advertisements that made the distinction between authentic specialists and self-designated individuals difficult, if not impossible, for the typical consumer to comprehend. The second premise, lowering costs, was a dismal failure, as evidenced by the dramatic rise in medical costs. These outcomes further confused the definition of adequate surgical training qualifications and quickly added a carnival midway patina to the universe of cosmetic surgery.

To those whose primary responsibility is the maintenance of the highest quality in surgical competence, the continuous dramatic changes in medicine have added a steadily growing challenge and an increasingly heavier burden. As a result, the interface between elective cosmetic surgery and the specter of medical liability is as complex as perhaps at any previous time in history. Of all medical specialists, the plastic surgeon’s exposure to professional liability is unique in at least two respects. First, the plastic surgeon who performs elective aesthetic surgery is not assuming the care of a sick or injured patient to make him or her well. Rather he or she is treating a well patient with the goal of making him or her better. Second, the patient judges the results of the treatment according to standards that are entirely subjective. The actual result may be good, but if it does not meet the patient’s expectations, the procedure may be judged a failure.

This chapter discusses both professional and legal considerations in cosmetic surgery. Building on related discussions in Chapters 2 and 16, the chapter begins with an overview of issues related to patient selection, particularly as they related to the specter of legal actions against the surgeon. Legal principals such as “standards of care,” “warranty,” and “disclosure” as they apply to cosmetic surgery, are reviewed. Chapter 18 discussed informed consent from a bioethical prospective. This chapter discusses issues related to informed consent with a more concentrated focus on the relationship between the cosmetic surgeon and patient. The chapter concludes with an overview of the most common causes of legal actions related to specific cosmetic procedures.

PATIENT SELECTION

Contemporary plastic surgeons practicing in the United States will find it virtually impossible to end their careers unblemished by a claim of malpractice. Well over half of these claims, however, are likely preventable. Most, at least indirectly are based on failures in patient selection, not on technical faults with the specific procedure. Patient selection in cosmetic surgery is the ultimate inexact science. It is a mixture of surgical judgment and experience, ego strength and gut feelings, personality interactions, and regrettably, often economic considerations (1, 2). Regardless of technical ability, a surgeon who appears cold, arrogant, or insensitive is more likely to be sued than one who relates to the patient on a “personal” level. Obviously, a person who is warm, sensitive, naturally caring, with a well-developed sense of humor, is less likely to be the target of a malpractice claim. The ability to communicate clearly is probably the most outstanding characteristic of the claims-free surgeon. Communication is the sine qua non of building a successful doctor-patient relationship. Decades ago, communications skills training and other courses on “doctoring” were absent from most, if not all, medical school curriculum. Today, an increasing number of medical schools not only offer such courses as electives, but also have them as part of the required curriculum. While basic communication skills can be taught, the most effective communicators likely have incorporated these skills into their personality (1).

Perhaps the greatest challenge for the practicing surgeon is to communicate effectively with the “difficult” patient. As discussed in Chapter 2, these patients can present in many different forms and are often dealing with significant psychological issues. As a result, they can represent a management problem for the surgeon and staff. The discussion in this chapter will focus on the types of patients, who as a result of their interactions with the surgeon or experiences postoperatively, may be more likely to threaten or bring legal action against the surgeon (1, 2).

Unrealistic Patients

Some patients have unrealistic and idealized, but also vague, conceptions of what cosmetic surgery is going to do for them. Some anticipate that they will undergo “Cinderella-like” transformations in their appearance, perhaps fueled by the atypical results regularly depicted on television programs such as The Swan and Extreme Makeover (3). Other patients may bring with them photographs or drawings, either of themselves or Hollywood celebrities, depicting the desired changes in appearance. These patients should be managed with great caution. They typically have little comprehension that the surgeon is dealing with human flesh and blood, not wood or clay.

Others may expect that surgery will improve their employment or social status, anticipating a major change in lifestyle with immediate recognition of their newly acquired attractiveness. These patients have an unrealistic concept of where their surgical journey is taking them and, more often than not, are likely setting themselves up for significant postoperative disappointment. Such patients show little flexibility in accepting any failure on the part of the surgeon to deliver what was anticipated. As discussed below, this disappointment of unmet expectations can play an important role in the issue of informed consent.

Indecisive Patients

In contrast to the patient with unrealistic expectations, the indecisive patient may experience great difficulty in articulating appearance concerns to the surgeon. In turn, he or she may consider the surgeon to be a “beauty expert” and rely on that expertise, rather than his or her own sense of dissatisfaction with a specific appearance feature, to direct the course of treatment. This patient may say to the surgeon, “You are the expert, what would you suggest I do?” or “Do you think I ought to have this done?” The prudent surgeon should respond, “This is a decision that I cannot make for you. It is one you have to make yourself. I can tell you what I think we can achieve, but if you have any doubt whatsoever, I recommend strongly that you think about it carefully before deciding whether or not to accept the risks that I have discussed with you.” The more the decision to undergo surgery is motivated from within and not “sold,” the less likely legal recrimination will follow an unfavorable result.

Some patients may present as indecisive as a function of specific life circumstances. Some, regardless of their chronological age, may have rather immature, excessively romantic, and a highly unrealistic concept of what the surgery will achieve. Often when confronted with the mirror postoperatively, they are prone to react in disconcerting fashion if the degree of change achieved does not coincide with their preconceived notions. Others may be indecisive as a result of familial disapproval. A less-than-ideal postoperative result may produce a “See, I told you so!” reaction from family members, which deepens the guilt and dissatisfaction. Patients with an excessive need for secrecy, such as those who request the use of aliases or require appointments at unusual times, also may be experiencing some indecisiveness about the procedure. Such accommodations, while not only difficult to achieve, likely hint at a degree of indecisiveness, if not excessive paranoia, about cosmetic surgery.

“Surgiholic” Patients

Also referred to as the “insatiable patient” (4), the “surgiholic” patient typically has had a variety of plastic surgery procedures performed either on the same or different physical feature. As discussed in Chapters 14 and 16, as well as in other work by Sarwer et al. (3,5, 6, 7, 8, 9, 10), many of the historical descriptions of these patients are consistent with the present-day diagnosis of body dysmorphic disorder (BDD). In these situations, not only is the surgeon likely confronted by a severe psychiatric illness, but, in the case of repeated procedures on the same feature, must also deal with a difficult anatomical situation. Often, these patients will make unfavorable comparisons to the previous surgeries and surgeons. No matter how much the surgeon may be tempted to play the role of the “White Knight” who finally “saves” the troubled patient, the percentage of achievable improvement isn’t worth the risk of the procedure. As discussed in Chapter 16, these individuals are likely better treated by a qualified mental health professional than by another cosmetic procedure.

Unlikable Patients

Regardless of the surgeon’s personality, in life there are people whom you simply do not like or who do not like you. An experienced surgeon knows within minutes of entering the examining room whether or not he or she will be operating on a given patient. Accepting a patient who is disliked is a serious mistake. A clash of personalities, for whatever reason, is bound to affect the outcome of the case, regardless of the actual quality of the postoperative result. Furthermore, such a relationship is likely to make dealing with an unanticipated result even more difficult. No matter how interesting such a case may appear, it is far better to decline the patient.

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