Although surgeons specialize in medicine, they may find themselves having to deal with many legal issues. In the United States, we have an advanced style of living. Gone are the days when the physician simply hung his sign and began treating patients. Present-day physicians operate in a regulatory environment frequently involving personal injury, credentials, board certifications, and malpractice claims.
Navigating through the maze of legal issues may seem daunting at first. However, it all comes down to finding methods of navigating through the four common areas of legality you may encounter in your practice:
- Medicolegal evaluations (specifically apply to personal injury);
- Credentialing (includes hospital, surgery center, and accreditation);
- Medical malpractice, divided into plaintiff and defense work; and,
- Medical board issues.
As the cosmetic surgeon’s job is part science and part art, in general you are working with the patient’s appearance. The patient’s background and attitude play a big part in determining what he or she wants to risk in order for you to improve, augment, repair, and/or reconstruct for them.
If you can improve the appearance of a scar with a 30% to 35% rate (arbitrary number), then it may be worth the risk to the patient to consider a correction. As a surgeon, you take a risk, too. However, if you decide to perform a procedure and make improvements the patient wants, there will be times when the state, the attorneys, and the courts ultimately have to decide what it is worth. For example, if you have a 9-year-old female who’s a nationally ranked ballerina with a traumatic scar on her arm, her “deformity” will be more significant than a scar on someone else’s arm.
When an attorney approaches you to do a medical evaluation for a legal matter, he is sending people to you who have been injured in some way. The attorney’s job is to represent their clients. It is not unusual for them to try to befriend you and to want you to potentially inflate your “reconstructive” bill.
If you do medicolegal evaluations, it is prudent to get paid up front in case the attorney does not like your opinion. In that case they either may not pay you or will subpoena your records, which you have to turn over. Unless you have a solid relationship with a law firm that you know to be honorable, don’t agree to do these types of evaluations without being paid in advance. You do have to be aware that you can be manipulated, and you really want to interact with ethical, above-board people.
A medicolegal evaluation is a legal document that usually includes the evaluation and photos. How do you decide what to charge for providing this service? Simple. You pick a price that is worth the hour or two of your time to do a very thorough evaluation and prepare a report.
From an ethical perspective, your word is your bond and you are morally obligated to uphold your principles. Therefore, you have to be somewhat rigid about what you think. You only have your opinion, and it is not for sale—only your time is for sale. You are free to allow lawyers to give you their presentation or their assessment. Being open and receptive to different points of view makes sense.
The second category of legality a surgeon may need to pine their way through is the maze of credentialing. There are three areas where credentialing may be required:
- A hospital;
- A freestanding surgery center; and
- An office-based surgical suite.
What do you need to know about getting your credentials? First and most important, understand the environment. For example, say you’re a cosmetic surgeon trying to get privileges for performing cosmetic surgery at a hospital. The process can be a major ordeal because people on the medical staff—specifically, plastic surgeons on the medical staff—might not want a cosmetic surgeon to practice at the hospital.
Therefore, when it comes to credentialing it is not unusual for a physician to apply for privileges for a procedure and then to be rejected in spite of his or her well-documented education, training, experience, and proven competence in a specific area.
Should you consult with an attorney regarding credentialing, you would be wise to get educated about the process prior to that first meeting.
For example, it is a good idea to obtain the hospital’s bylaws or the surgery center’s bylaws. You can look at the Joint Commission on Accreditation at Hospitals (JCAH), the American Medical Association (AMA) guidelines, and the American College of Surgeons (ACS) credentialing requirements and bylaws.
Understand these organizations’ recommendations. Find out what they think is important and what rules govern them. Organizations actually have to act within the confines of those bylaws.
All of the credentialing organizations specifically say that a physician’s credentialing should be determined on the basis of education, training, experience, and documented competence. It is not—and should not be—based on a physician’s board certification.
For credentialing, find out what the bylaws are and make sure your case is solid. Most important, realize that if you’re going to do this then there may be a significant legal battle. Don’t walk into this process blind. You and your attorney need to be prepared.
As an example, the American Academy of Cosmetic Surgery (AACS) has helped its members navigate through the credentialing process. Many battles have come to that organization’s attention. In response, the AACS publishes an information packet to assist in this area, as well as a packet to help physicians in another kind of battle in which cosmetic surgeons are faced with other physicians who disparage or discriminate against them. Templates are available for physicians and their attorneys to help them fight discrimination in the marketplace.
The credentialing packet has been written for physicians and follows the steps for getting credentialed by a hospital. The second packet has been prepared for use by attorneys and is a legal document that outlines what you have to do to succeed in getting credentialed. This includes all of the steps involved, such as how to obtain the bylaws, making sure you’re sending the appropriate correspondence, and making sure you’re applying in the correct way to the correct department.
If you’re going to succeed, you have to proceed thoughtfully. It is not a casual undertaking. In addition, the process can get expensive, as does any activity that involves hiring an attorney. For instance, the AACS does not make its information packets available to its members free of charge.
One critical question always remains: Should a practitioner represent himself? Every time they do, the result is suboptimal. There’s no way you can command a competent understanding of law, medicine, cosmetic surgery, plastic surgery, and the legal issues involved in order to give an adequate opinion and truly represent yourself in a court of law.
Here is one area in which a physician should try to become an expert in order to survive. Medical malpractice concerns any physician who has performed beneath the standard of care for treating the patient. The patient has to suffer damages that are directly related to what you’ve done. There are community-based standards as well as national and international standards that define medical malpractice. In this day and age, these are usually the same.
In around 85% of the cases that are filed, the courts decide in favor of the physician and not the patient. It is out of the ordinary for a physician to have knowingly done wrong.
On the patient’s side, it is easy for a patient who is unhappy or doesn’t like the result or had a bad outcome to want to sue the physician. In this argument, the patient says, “The physician did wrong because I had bad results,” or “I didn’t like the results.” In cosmetic surgery this is usually a sign of a poor relationship between the surgeon and patient.
The two hallmarks against going down this road are realistic expectations and an informed consent. These are crucial. An informed consent means that the patient and the physician have an understanding of what they are exposing themselves to in terms of risk.
Many malpractice cases are frivolous. The patient didn’t like the outcome, they didn’t like the way it looked, something bad happened and they assumed the surgeon must have done something wrong. So, they file a lawsuit. Once again, the underlying problem is probably poor communication. The ethical obligation is to actually review the case. When you do that, you need to look at everything—you must see the case against you from the patient’s point of view, and you must be willing to own up to your mistakes, if any.
WHAT YOU ARE UP AGAINST
In the career or life span of a cosmetic surgeon, how common is it to get sued? It can happen any time. If you can’t handle getting sued, don’t do cosmetic surgery (especially in Texas, Florida, California, and New York, where the lawsuit experience may be a worse one compared to other states).
If you take the patient-sues-physician scenario and add in the possibility that your competitors, in an absolutely unethical fashion, can and will say anything against you, you must institute quality-of-service standards that exceed any and all requirements.
In this day and age, on some level everything is “spin.” The practitioner must rise above the potential for spinning the truth, be totally ethical, and be 100% devoted to taking care of patients. You don’t promise people the moon. You have to be straightforward, honest, and caring in delivering your services to your patients.
What it comes down to is take care of your patients and talk with them. In my practice, all of my surgical patients have my home and cell phone numbers. My postop patients get called or seen by me almost every day. I take care of them, but that doesn’t mean I can make everybody happy. Treat them like they are members of your family. Do your best, and be totally honest with them. Tell them, in so many words, “I can give you this, but not that. You’ll get this much, but not that much. This is what you will like, and this is what you won’t like.” This interaction begins before any treatment is rendered.
Your attention to these kinds of issues means that you have to be absolutely aware of your patients and their needs. That is the market that you’re in—an elective service market. The foundation of your practice ought to be to take care of the patients, document things well, and keep good pictures. Then you must realize you will probably experience the vagaries of a malpractice suit in your lifetime.
THE CURSE OF THE BREAST LIFT
Of all the procedures a cosmetic surgeon can perform, the one that garners a higher risk as far as medical malpractice claims is the breast lift, as this procedure in particular can involve some pretty significant scars.
Prior to surgery, if you do not sit down with your patient and talk to her about the scars, how they might look, and what the potential complications might be and the dissatisfaction rate, you have done your patient a disservice. Outcomes should be based on patient expectations. You can do the best breast lift ever and still have a patient who is totally unhappy.
In this way, cosmetic surgery and plastic surgery are very different from, say, procedures such as removing a gall bladder or doing a hernia repair. In those cases, the standard is when you need to take something out, it’s out; and here’s the procedure that was followed. On the other hand, with a facelift you gave the patient X result and thought they were going to get Y result. You have moved into a different realm with differing standards. Results are not only a matter of cutting and stitching; there is an intangible quality that is tough to quantify, and no two people may agree on whether or not that facelift was an artistic success.
In your total care of the patient, it is personal interaction that affects outcome as much as actual results. Having said that, your most basic prediction of who will be happy after breast augmentation is predicated on their view of life. If they were a happy person before, they can be a happy person afterward with larger breasts. If they were an unhappy person before augmentation, they will be an unhappy person postoperatively (and with larger breasts).
EVALUATING MEDICAL MALPRACTICE CASES
Similar to what happens when a physician takes on medicolegal evaluations, the same overriding advice applies to times when you evaluate medical malpractice cases—get paid in advance for your time. When you take the stand in defense of a physician or as a witness for the plaintiff, keep in mind you are not getting paid for your opinion. You are getting paid for the time that you spend evaluating and preparing for the case.
One mistake that some physicians make is thinking that they have to defend everything done by the physician on trial. You really don’t have to do that. You are not selling testimony. You need to represent both the plaintiff and the defense. You only have to be honest, and don’t aggrandize or embellish. Credibility means that you are pursuing the truth. Being involved in both plaintiff and defense work means that you are committed to objectivity.
It’s very important to understand that from your state government’s point of view, and for good reason, you do not have a right to practice medicine. It is a privilege granted by obtaining a license. Therefore, the state goes through a credentialing process to make sure that you’ve been trained, and that you may have adequate training and experience.
All US states have medical boards (and some have osteopathic or combined boards), and they try to enforce their will. In theory, a medical board is tasked with protecting the public. That can be difficult to try to balance the public good with the right of people to do things that may be a little bit different from mainstream medicine.
Medical boards are also in charge, unofficially, of maintaining the status quo. That means changes to how you practice medicine and changes to the health care system might not get accepted at first. Change is anathema to many medical boards, even though they seem to get easily stuck in the middle of controversies. In addition, these boards are often understaffed and underfunded.
Medical boards can be unfair to physicians—even attack them outright—and they have been known to misapply the law. It is not unusual to feel harassed by medical boards. You may be on the faculty of a major institution and end up feeling like a mainstream practitioner. You may be very conservative and a consistent advocate for patients, as well as someone who doesn’t do anything wild, crazy, or racy. Yet, I have seen excellent physicians and surgeons labeled by medical boards as being “bad doctors.”
To say these attacks are a matter of perception is not accurate, although it is the perceptions of people on medical boards that can lead to the persecution of any fine physician. Often, the attack comes from a perception that a physician is challenging the status quo. When medical boards place maintaining the status quo ahead of any other consideration, the potential for abuse of power looms large.
You need to know the rules of your state. You can find that information on your medical board’s Web site.
In California, if you are a physician and you don’t notify the medical board that you’ve changed your address, you might be sanctioned. Other rules doctors must be aware of are the rules in regard to having a business license and rules on having what is called a fictitious name, which could just be the name of your clinic. In addition, you are responsible for the people working under you. You must be aware of both your business responsibilities and your professional physician responsibilities. Especially be aware of exactly what procedures individuals in your office (licensed and unlicensed) are legally allowed to perform.
Understand how the rules in your state apply to advertising your practice, your services, and your credentials. This topic has been one of the major battles between physicians and medical boards. For example, for the Medical Board of California it’s called Business and Professions Code 651, which says any licensed member cannot disseminate any “form of public communication containing a false, fraudulent, misleading, or deceptive statement, claim, or image for the purpose of or likely to induce, directly or indirectly, the rendering of professional services or furnishing of products in connection with the professional practice or business for which he or she is licensed.”
If you show a model in your ad, then your picture has to identify her as a model, in visible print. If you put a before-and-after picture of one of your patients in an ad, you have to say something to the effect of, “actual patient, your results may vary.”
Medical boards can use complaints about your advertising (which frequently come from your competitors) against you. And then there can be patient complaints.
If you receive a notification from a medical board, don’t take it lightly. A majority of physicians may think that because they’ve done nothing wrong they don’t have a problem, and that everything will just work out. This could not be further from the truth. You need to be prepared to defend yourself. Do not underestimate what is happening, and do not misjudge the situation.
Get a lawyer if you don’t already have one. Your attorney also needs to be capable of correctly judging your situation. They should specialize in working with your state’s medical board. Get advice of counsel and follow it.
The medical board represents your adversary in any complaint, so you have to make sure that you protect yourself. When it comes to the medical board, bad things can happen to you even when there are not adverse outcomes or even when you feel honestly that you have done nothing wrong.
Patrick McMenamin, MD, is a Diplomate of the American Board of Cosmetic Surgery (AACS), and 2009 president of the AACS. He has been in private practice for 20 years in Sacramento, Calif.
Shelli Merrill is a contributing writer for PSP. She can be reached at firstname.lastname@example.org.