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To tell or not to tell

Article-To tell or not to tell

Dr. Goldberg
Surgeons offering cosmetic procedures to patients are legally obligated to disclose information about these procedures — their benefits and drawbacks — and what patients might expect in the short term.

Thereafter, legalities diminish and some say ethics take over regarding whether surgeons should reveal much more, experts tell Cosmetic Surgery Times. Some examples? Willingly telling prospective patients that a surgeon has never done a procedure before, and the patient will be the first since the surgeon completed a weekend course. Or should a doctor tell a patient about being the defendant in some 50 malpractice lawsuits in a 10-year career?

The examples need not be so extreme, but the struggles remain with how much a surgeon should reveal, so that the patient can make an informed decision.

Always answer honestly

Offering information about judgments, lawsuits, experience and more is an ethical, versus a legal, obligation for surgeons. The tables turn, however, when patients ask direct questions. Then, not only is it surgeons' ethical obligation to answer honestly, but dishonest replies could come back to them in a malpractice battle.

David Goldberg, M.D., J.D., a dermatologist, director of Skin Laser and Surgery Specialists of New York and New Jersey, director of laser research at Mount Sinai School of Medicine and adjunct professor of law at Fordham Law School in New York City, says the legal ramifications of disclosure are most pronounced if a doctor is doing a procedure for which there is no Food and Drug Administration (FDA) approval.

"Then, obviously the patient has to be part of a study and the physician must say that the treatment is not FDA approved. Subjects must be told that they are part of a study and be provided with appropriate study materials and consent," he says.

Even then, there are a lot of unknowns, including about the abilities of the surgeon performing procedures in trials.

What to say and when

Experts disagree on whether it is an ethical necessity to offer information other than what pertains to the surgery at hand without being prompted by direct questions.

Dr. Zide
"If a physician is new to a procedure, then ethically the doctor should, I think, disclose to a patient that he/she is not experienced in that procedure. Generally, the best way to approach that is to either treat someone for free or at a reduced rate. But as long as something is FDA approved, doctors are not legally obligated to tell patients how experienced they are unless patients ask the question directly," Dr. Goldberg says.

Barry M. Zide, M.D., D.M.D., board certified plastic surgeon, professor of plastic surgery at New York University Medical Center, New York City, says that, in the right hands, no explanation about lack of experience is needed, although the surgeon might explain the newness of an operation and what it requires, if the surgeon is comfortable with the procedure.

"A well-trained surgeon who is good and knows the anatomy should be able to do almost anything, or, if he does not feel comfortable, at least be able to get the training that he needs. Under the aegis of good training, a surgeon should not feel obliged to mention that he might have only done a procedure once or a few times," Dr. Zide says. "If you do not have an understanding of the anatomy, then everything you do is outside your realm."

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