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Litigation, complaints in cosmetic surgery

Article-Litigation, complaints in cosmetic surgery

Informed discharge and extensive preoperative dialogue are key to minimizing serious and permanent complications that may trigger a lawsuit or complaint against an aesthetic surgeon, says the president of the Canadian Society for Aesthetic (Cosmetic) Plastic Surgery (CSAPS).

"The communication between the patient and the surgeon needs to be clear," says W. Bryan Callaghan, M.D., a member of the council of the Canadian Medical Protective Association, an organization that provides legal defense, indemnification, advice, educational programs and risk management tools to 95 percent of Canadian physicians.

"Much of the decision-making is preoperative," says Dr. Callaghan, an aesthetic surgeon in private practice in Ottawa, Canada, speaking at the Toronto aesthetic surgery update. "It's difficult to talk about what was said preoperatively and what was understood by both sides eight months down the road when complications occur. It then becomes a matter of 'he said/she said.'"

About 65 percent of plastic surgery litigation cases where the Canadian Medical Protective Association is involved are aesthetic surgery cases, the most frequent of those being breast reduction procedures. Surgeons performing aesthetic procedures should not simply tell patients to get in contact with their office if they are not feeling well when they are being discharged from surgery. There needs to be more explicit advice.

Surgeons should outline what symptoms or complications are warning signs that the patient is not recovering well. The surgeon should communicate this information directly or through an office staff member. A pamphlet or some documentation to take home would be useful to avoid potential litigation.

The surgeon as well as the clinic can be named in a lawsuit, Dr. Callaghan notes. If a member of a staff performs a procedure or is responsible for the discharge of a patient, the physician can still be named in the suit and is responsible for the actions of his or her staff, Dr. Callaghan says.

"The point is that the physician should be available if something were to go awry," Dr. Callaghan says.

Learning from case histories

One of the litigation cases that came to the CMPA was a case of blepharoplasty where an elderly patient complained of severe pain and swelling in one eye 24 hours postoperatively. The patient's daughter called the nurse to say there was discharge from the eye. The nurse did not ask if the patient's eyesight was affected. The patient was seen more than a week after the procedure. At that point, the patient had vision loss for seven days. The result was permanent blindness.

"If a patient has a blepharoplasty, and it starts to impair the vision, that is not a good sign," Dr. Callaghan says. "If a patient calls and complains of this, it should be attended to as soon as possible. Some member of the staff should have asked if the patient's vision was impaired. It's our obligation to make sure the patient or the accompanying responsible person is armed with information, so they know to make a call if the post-operative course isn't going well."

In another case, a 29-year-old woman had a breast reduction that resulted in her being unable to breastfeed. She sued the surgeon, claiming she didn't know the outcome could result in the inability to breastfeed and that she suffered much psychological distress because of the cosmetic result.

"The possible effects of the surgery were not discussed pre-operatively," Dr. Callaghan says. "She did not know the possible implications of a nipple graft. She made a very sympathetic witness in court."

Expert witness sticky-wicket

Another area where physicians may become involved in litigation, and where they need to tread carefully, is as an expert witness. In this situation, doctors can be caught off guard even if they are very cognizant of clinical evidence, Dr. Callaghan notes.

"You can present all kinds of data and research to support the decision of the surgeon, but you will be asked if you would have done the same thing in the same situation or if you have done the same procedure in the same clinical circumstances," he says. "That is the real litmus test."

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