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The Genesis of Plastic Surgeon Claims: A Review of Recurring Problems

The Doctors Company holds Plastic Surgery Claims Review Panels to evaluate claim trends within the specialty. The panels, composed of doctors, attorneys, and claims representatives, help us provide practical risk management suggestions to our policyholders. The following article describes trends and examples of cases involving either improper or poor documentation, lack of preoperative photographs, inadequate informed consent, and poor patient-selection criteria.

Smoking

At least three cases that were reviewed involved wide-tissue undermining procedures, such as face-lift and breast surgery, where the patients were heavy smokers. As a result, the patients suffered sloughs or sloppy healing, causing poor scars that could have been predicted preoperatively. These cases reflect a continual flow of totally avoidable claims that are directly linked to smoking. If a patient is a heavy smoker (one pack a day or more), surgery should be declined or postponed, or the plastic surgeon should carefully document that the patient was warned of the possible complications of continued smoking.

If a surgery is to take place after a no-smoking period, the procedure should be postponed for a minimum of two weeks, preferably one month. Patients should sign a document stating that they have not smoked for the specified period and will not smoke for the same length of time postoperatively.

One of The Doctors Company’s cases reviewed involved a 35-year-old patient who contacted a plastic surgeon on June 1, seeking breast reduction surgery. At that time, the woman’s breast size was 40EE, causing her pain across her back and up her neck.

On June 19, the plastic surgeon performed a bilateral breast reduction without incident. But on July 2, during a follow-up visit, the surgeon noted a full thickness necrotic area on the patient’s right breast. On July 19, the surgeon performed a débridement of the patient’s left nipple and conducted a skin graft from the right groin to the right breast. The surgeon continued to monitor the patient and provided antibiotics and dressing changes. On September 7, the patient developed drainage and inflammation of the left breast; the surgeon noted that the patient was noncompliant with postoperative instructions to cease smoking during the recovery period.

In her claim, the patient alleged surgical damage to circulation in her areolar-nipple-complex area. This case was defensible because the surgeon properly documented that the patient was a smoker and that appropriate pre- and postoperative instructions had been given for her to refrain from smoking one month prior to surgery and during recovery. The patient’s complications appeared related to her failure to comply with the instructions.

Documentation

In a typical case involving inadequate documentation, a septorhinoplasty was performed, and the results were unsatisfactory. Although the medical records indicated the performance of a septorhinoplasty, there was no operative report indicating that the septal part had been performed. The medical records also did not indicate that a second opinion had been obtained. The case was further compounded by additional surgeries that had dubious indications, if not totally contraindicated sites.

In several complex cases, no preoperative photographs had been taken. In one such case, a 29-year-old female was seen by the plastic surgeon for biopsy of a right parotid gland cyst. Three months later, she returned with a recurrent cyst, which was biopsied again. One month later, a CAT scan was performed, and excision for frozen section was recommended. The patient was diagnosed with pleomorphic adenoma. She was not seen again until three years later, at which time she underwent a parotidectomy and exploration of the area. Pathology returned a report of recurrent pleomorphic adenoma. Two years later, the patient reported swelling and tenderness at the excision site but no palpable lump. She was advised to call back when the gland filled again; she subsequently requested her medical records.

The patient alleged dysphagia and facial droop secondary to nerve damage that occurred during the resection of the parotid gland. The surgeon did not photograph the patient prior to or following any of the excisional biopsies or the gland resection—which made it extremely difficult to determine prior facial weakness.

Informed Consent

The use of informed consent among The Doctors Company policyholders has improved significantly over the last few years. Informed consent plays a substantial role in virtually all plastic surgery cases. It is important to spend as much time as necessary with patients to make sure they fully understand all aspects—pro and con—of the surgery being requested.

In two cases of facial rhytidectomy, the review showed that patients had complained of loss of sensation in the ear. In both cases, the patients said they were not advised of the potential for nerve damage. In one case, the surgeon consulted with a neurologist who reported that the patient had sustained “nerve damage, secondary to face-lift.” The surgeon should have referred the patient to a plastic surgery colleague, who would have recognized that the injury was temporary and would have so advised the patient. In this case, the words “nerve damage” were enough for the attorney to think the case was valid.

Another illustrative case involved a surgeon’s assumption that because the patient was an educated critical-care nurse, he did not need to present as much information as usual to obtain her consent. The 30-year-old patient was seen for a strong family history of breast cancer. She requested a prophylactic subcutaneous bilateral mastectomy. The physician assumed that the patient understood more than the average layperson, and he performed the procedure with an immediate postoperative reconstruction.

Postoperatively, the patient developed congestion and ecchymosis bilaterally in the skin flaps, and the left implant migrated toward the left axilla. Two days postoperatively, the left implant was repositioned, although the skin flap appeared to be of questionable viability and the nipple appeared necrotic. Two weeks later, the patient developed additional problems with the left implant, which had to be removed. Three weeks later, the right implant also was removed, and a débridement of nonviable tissue had to be performed.

The plaintiff justifiably alleged bilateral breast disfigurement. In reviewing the records, the panelists found a distinct lack of discussion between doctor and patient about possible postoperative complications. Under the circumstances, the case was judged difficult to defend, and a settlement was sought. It is worth noting that a surprisingly high percentage of plastic surgery claims involves nurses or paramedical personnel as patients.

Patient-selection Criteria

Poor patient selection was a central issue in many of the cases reviewed by the panel—a trend in plastic surgery claims that seems to continue unabated.

The cases reviewed included an abdominoplasty and a suction-assisted lipectomy on a 72-year-old woman, and a forehead rhytidectomy on a 24-year-old man. Considering the ages of the patients, special consideration should have been given to the risk-benefit dynamics and/or unrealistic lifestyle changes expected by the patients.

In another case, a 66-year-old female had received multiple face-lifts and bilateral upper and lower eyelid blepharoplasties since 1970; she began seeing the plastic surgeon in 1972. In July 1990, a third face-lift was performed. Postoperatively, the patient had excessive swelling, but no hematomas or seromas. She complained of difficulties with complete eye closure bilaterally, and noted some weakness of the left upper eyelid. The surgeon believed that the zygomatic branch of the seventh cranial nerve might have been damaged intraoperatively. He recommended a six-week course of galvanic stimulation to improve the patient’s recovery rate. In December 1990, the surgeon took a “tuck“ in the patient’s lower eyelids to resolve complaints of excessive drying. He last saw the patient in May 1992 and noted improvement in her lower eyelids. The patient then moved to Arizona and underwent a full thickness skin graft to the upper lids—with excellent results. Nonetheless, she filed a lawsuit.

The panelists were supportive of the surgeon’s technique and believed that the patient’s course was predictable, with known complications. They felt, however, that he had put himself at risk by choosing to do a third face-lift and blepharoplasty on this patient.

Another case involved a 40-year-old female with a strong familial history of breast cancer and atypical breast biopsies who was seen by a plastic surgeon for possible prophylactic bilateral mastectomy with immediate reconstruction. The mastectomies were performed without complications by a general surgeon. The plastic surgeon performed immediate reconstruction. Five months later, the patient was admitted for bilateral nipple grafting and removal of ports from the inflatable expanders. The patient alleged that the mastectomies were unnecessary and that the cosmetic results were unsatisfactory. The panelists indicated that this patient would probably have benefited from preoperative psychological counseling; she was “cancerphobic,” and even though she was a licensed practical nurse, she had unrealistic expectations regarding the cosmetic end results.

While economic pressures and fierce competition for patients may be a factor in selecting patients, failure to screen out patients who are unsuitable candidates for plastic surgery is one of the most avoidable causes of malpractice claims for this specialty.

Economic Pressure

One of the most disturbing trends noted by our claims panels is the tendency toward high-pressure salesmanship on the part of plastic surgeons. In at least two cases, it was clear that surgeons had suggested additional and different procedures from those the patient had initially sought. While there is nothing inherently wrong with performing multiple procedures over an appropriate period of time, soliciting patients with new procedures creates the appearance of impropriety in the minds of jurors, whether justified or not. This practice also implies an unsavory choice of priorities: economic consideration above surgical judgment. Defending these cases is far more difficult if one of the allegations turns out to be “the doctor talked me into it.”

An outstanding example of this error in judgment involved a 26-year-old female who was referred to the plastic surgeon for possible revision of scars on her face and extremities. Multiple Z-plasties involving the left chin, earlobe, left medial knee, and right thigh were performed. The surgeon did not use any kind of bracing for the knee, and the patient subsequently sustained a wound separation of the right knee that required a reapproximation of the wound. The panelists believed that the surgeon had made an imprudent choice of revisional procedures. A complete scar excision on the knee, with appropriate wound protection, might have been indicated. The panelists, however, also noted that the preoperative pictures showed a far better scar than the result of the revisionary surgery. They were critical of the decision to do a scar revision in that particular area.

Unexpected Costs

Patients often assume that although the cost of cosmetic surgery is their responsibility, their health insurance will pay any costs incurred as a result of complications or unpredictable revisions. That is not always the case. Patients should be advised to determine what their health insurance will cover. A frequent cause of plastic surgery claims is the unexpected financial obligation that patients incur when there is an unanticipated complication. There should be a clear understanding prior to surgery that the patient may be financially responsible for any procedure expenses that his or her insurance does not cover.

Trauma Cases

As in orthopedic surgery, trauma cases in plastic surgery represent a significant source of claims exposure to plastic surgeons. Many of these cases arise from emergency room treatment for an injury or accident involving allegations of negligence. When the patient obtains legal representation regarding the underlying injury, the attorney will consider the medical treatment as another potential source of damages.

Two such cases reviewed by the panel involved trauma to the upper extremity. In the more serious of the two, the patient sustained a severe avulsion injury to the right forearm. The surgeon attempted a replantation procedure to save the extremity. Unfortunately, six days later, an amputation of the right upper extremity at the level of the distal elbow was necessary due to failure of the replantation. Anaerobic cultures were ordered and reported negative. The patient was released from the hospital in good condition.

Approximately 16 days after initial admission to the emergency room, the patient was readmitted. Although there were no signs of an infection, he developed cardiac arrest secondary to wound botulism and expired. This not only strengthened the case for the original injury, but enhanced it with a malpractice allegation. Even though panel members believed that treatment was appropriate and within the standard of care, the case underscores a valuable lesson: Plastic surgeons who perform emergency room work must not relax their vigilance under the false assumption that trauma cases represent a lesser degree of exposure.

Skin Lesions

The claims review revealed that surgical removal of multiple skin lesions presented unexpected problems. In one case, a patient was operated on for removal of a biopsy-proven basal cell carcinoma of the right nostril. A benign lesion of the forehead was also removed at the same time. Both specimens were sent together, and the pathology report returned with a mistaken diagnosis of benign nevus on the nose. Once the error was discovered, additional surgery was required that resulted in a disfigurement and a subsequent malpractice claim.

This kind of error can easily be avoided if the plastic surgeon clearly identifies every lesion and sends each specimen to pathology in a separate container. A schematic map should be sent along with every specimen to indicate location and orientation of each lesion. Just prior to surgery, if a period of time elapses between the last office visit and the surgery, it is an excellent idea to re-review which lesions are to be removed by pointing them out to the patient in front of a mirror.

Inadequate Training

In several cases, procedures were performed despite inadequate training by the surgeon in that particular modality. Plastic surgery is one of the most dynamic and rapidly changing specialties in medicine. New modalities of treatment, new technologies, and new procedures are constantly arising that require specialized and, often, hands-on exposure. Sometimes, because of economic need or schedule conflicts, necessary training is bypassed. A classic example is the first-known attempt at abdominal liposuction, which resulted in a perforated abdomen that went unrecognized for several days. The serious complications eventually led to the patient’s demise.

In one case reviewed, a 46-year-old woman requested sclerotherapy for veins of the medial and lateral thigh. A 12.5 percent saline solution was injected, and eight days later the patient complained of increasing pain and inflammation. She was referred to her primary care physician, who diagnosed thrombophlebitis that had progressed into the superficial saphenous vein system. One month later, a vascular surgeon had to place the patient on anticoagulant therapy, and eventually a saphenous vein ligation had to be performed. In her claim, the patient alleged that the original injections were improperly done, that the surgeon performing the procedure was inadequately trained, and that disclosure was inadequate. The case eventually had to be settled.

Interdisciplinary Turf Battles

One of the most difficult dilemmas in evaluating plastic and reconstructive surgery claims is the recurrent problem of interdisciplinary turf battles. In one such case, a 52-year-old male trucker was injured in an altercation, sustaining a fractured mandible. In the emergency room he was given pain medication and referred to another physician. Three days later, the patient returned, untreated, to the emergency room. He was refused treatment due to lack of medical insurance and was eventually referred to a plastic surgeon. The surgeon decided that an open reduction with internal fixation would be the appropriate treatment for this particular fracture. Because the patient had a very poor dentition, and fixation was lost on the first postoperative day, the surgeon planned to do another procedure with splint placement. The patient refused the proposal and was then discharged. At discharge, he was advised of being at risk of losing maxillary alignment or validational treatment. The patient then sought treatment from an oral surgeon and underwent further procedures involving placement of a fixation plate and bone grafting.

In the subsequent lawsuit, the patient, backed by the oral surgeon, alleged that the plastic surgeon was not qualified to perform the maxillary facial surgery that he claimed led to the original loss of fixation.

Summary

Over the years, The Doctors Company panel reviews have consistently revealed poor communication and inappropriate patient selection as primary causes of claims against plastic surgeons. There also appears to be a trend toward substituting economic considerations for sound surgical judgment.

The Doctors Company continues to emphasize the importance of conducting—and documenting—thorough medical histories and informed-consent procedures for plastic surgery patients. We also recommend that regardless of economic incentive or surgical challenge, plastic surgeons should apply sound judgment and common sense when selecting suitable candidates for plastic surgery.

J3246 2/04

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