The Legal Implications of Unfavorable Results

Christopher L. Nuland

At one time, plastic surgeons were at a minimal risk for malpractice actions, because potential plaintiffs often were ashamed to admit that they had undergone a cosmetic procedure. With increased popularity of cosmetic procedures, any stigma has vanished, as has patients’ reluctance to file both regulatory and civil complaints, and plastic surgery in is now one of the highest-risk medical specialties for medical malpractice claims.1

Therefore preventing claims based upon unfavorable results and effectively managing the legal ramifications are both essential in today’s practice of plastic surgery. From a prevention standpoint, good clinical care alone cannot guarantee a “favorable result,” and the surgeon must strive to manage the patient’s expectations before the actual procedure. Once the patient deems a result to be “unfavorable,” however, the surgeon must also be prepared to mitigate the legal risks associated with such a result.

Primer on Liability for Medical Malpractice

Liability for medical malpractice, which, in the case of a plastic surgeon, is almost always predicated upon an unfavorable result, can be both civil and regulatory.

A civil suit must satisfy four key points to succeed²:

1. A duty of the defendant

2. A breach of that duty

3. The breach being the proximate cause of damages

4. Those damages being compensable by money

In the regulatory arena, only the first two items theoretically are at issue. In other words, regulators will only de termine whether the surgeon had a duty (such as a rule or an acknowledged standard of care) and breached that duty. At least theoretically, licensing officials are not concerned with the damage that may have been caused, because the duty of licensing bodies is to ensure that future patients are protected; therefore the damage caused by a breach of a medical duty will alone be seen as cause for sanctions.

The common thread in both type of actions is whether the surgeon had a legal duty and whether that duty was breached. When a patient has an unfavorable result, the existence of damages is assumed, and the central legal issue becomes whether the surgeon breached a duty to the patient. This duty may emanate from a multitude of sources, such as explicit laws, a standard of care accepted within the medical community, or a duty implicitly or explicitly created by the surgeon.

Avoiding Unfavorable Results and Complications

From a legal perspective, the physician’s duty is to uphold both the standard of care and any duty that the physician implicitly or explicitly accepts. The standard of care, which usually is outside the control of an individual physician, is a product not only of the general consensus of the medical community, but also of laws that may be passed by legislatures and regulatory boards.

Other duties, however, are implicitly or explicitly accepted by the physician through the use of warranties that are often inadvertently made in advertisements and during preoperative consultations. Fortunately, the expectations that create these duties often may be managed effectively through careful craftsmanship of marketing materials and responsible use of the consultation and informed consent processes.

Standard of Care

For centuries the common law of England and the United States has recognized that a physician has a duty to provide services in a competent manner.3 Moreover, in virtually every Western jurisdiction, legislative bodies have codified into law that the surgeon has both a civil and regulatory obligation to meet the prevailing standard of care (for example, see Florida Statutes §458.331[1][t] and §766.102[1]), with the following being a fairly common definition of the standard of care^4,5:

The prevailing professional standard of care shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.⁴

As every practicing physician understands, however, an unfavorable result does not necessarily constitute a breach of the standard of care, and lawmakers fortunately have codified that reality.⁶

Regulatory boards composed of physicians also routinely understand this, although laypeople often expect optimum results from every medical intervention and often believe that they are entitled to compensation for unfavorable results, even when such results are unrelated to the quality of the physician’s care. Although the plastic surgeon can, to some extent, define his or her own standard of care by carefully indicating to the patient what the surgeon will and will not do and what the patient may expect (discussed later), ultimately the standard of care is a combination of rule and statute on the one hand, and the consensus of the medical community in which the surgeon operates on the other.

Defining the standard of care within a medical community is admittedly challenging. Depending on the needs of the patient and the training and preferences of the physician, different techniques and procedures may be used. For instance, liposuction may be either tumescent or traditional and breast implants may be either saline or silicone, and defining a single standard of care applicable to all patients in all settings becomes problematic, at best. Therefore both civil and legal actions based upon a surgeon’s alleged breach of the community standard of care inevitably become a battle of competing expert witnesses, with each side employing members of the health care community to argue that the physician either did or did not uphold the standard of care.

Although the standard of care within the medical community is constantly evolving and amorphous, rules and statutes are generally fairly exact in the duties that they impose upon the physician. For instance, those working in specific settings such as hospitals, ambulatory surgery centers, or regulated office surgery facilities must always comply with the laws governing such practice parameters regarding the types of surgeries that may be performed in each setting, the medications that must be available, and what other professionals must assist in the procedure.⁷ Each of these legal requirements constitutes a separate and distinct standard of care, and compliance with such laws is essential, because any breach of the legal requirements is automatically deemed to be a breach of one’s duty. Coupled with the patient’s perception of an unfavorable result, a technical breach of a rule or statute creates a breach of an acknowledged duty and damages, with the only remaining issue being whether the breach was the proximate cause of the damage.