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Surgeon error disclosure makes sense from multiple perspectives


Dr. Goldberg
When a cosmetic surgery patient suffers a complication that may be a result of surgeon error, truthful disclosure is the ethically correct path to follow but may also be advocated for mitigating medicolegal consequences and to diminish emotional suffering for both the patient and provider.

"From an ethical perspective, physicians are obligated to tell patients if something went wrong, and it is also their responsibility to treat the patient for whatever complication occurs. To the best of their ability, surgeons need to personally care for these individuals or refer them to another physician who is experienced and competent to handle the problem." This according to Priscilla Ray, M.D., who practices general and forensic psychiatry in Houston and is chair of the Council on Ethical and Judicial Affairs, American Medical Association.

Settings promote disclosure

She acknowledged certain settings promote full disclosure. For example, according to Colorado law, information physicians discuss about an error cannot be used against them in court. However, Dr. Ray expects that for practitioners in jurisdictions without such explicit protection, even though most would probably feel more comfortable talking openly and honestly with their patients about something that went wrong, personal fear — or legal counsel that admission of error will increase the risk for malpractice litigation — may foster intentional concealment.

Dr. Finn
Meanwhile, patients left uninformed who sense they were harmed by a medical mistake or, even worse, whose queries are ignored, are likely to become confused and angry. These feelings can lead them to consult an attorney. Therefore, from a medicolegal perspective, when a patient suffers a complication, whether or not the physician has been negligent, owning up to the fact that a problem has occurred and doing whatever is reasonable to remedy the situation offers a rational strategy to decrease the risk of a lawsuit, says David J. Goldberg, M.D., J.D., an attorney and dermatologic surgeon who performs cosmetic procedures.

"Physicians are human and inevitably all humans make mistakes. However, when an error leads to a complication and the physician was clearly negligent, open, honest communication may be the best preventive measure for avoiding a lawsuit. While many patients are motivated to sue for monetary reward, equally as common, they want to obtain 'a pound of flesh' from a doctor who disappeared when something went wrong," says Dr. Goldberg, who is clinical professor of dermatology, and director, laser research and Mohs surgery, Mt. Sinai School of Medicine, New York, and adjunct professor of law, Fordham Law School, New York.

Dr. Goldberg notes that physicians who did not breach the "standard of care" may nevertheless find themselves needing to endure the time drain and emotional turmoil of being sued, but do not have to worry about losing a malpractice lawsuit. Most often, an alleged breach of standard of care resulting in a complication lies in a "grey zone" that may be judged as a breach by some experts but not by others. In that situation as well, an attempt to alleviate the problem without admitting any culpability remains the best approach.

"No course of action is foolproof. However, honest communication with display of a caring and concerned attitude is the best strategy for stopping a lawsuit, and helping the patient through the complication is critical as well. Doctors who do something wrong should do everything in their power to mitigate the damages. If the case does proceed to court, those actions will be looked on favorably by most juries," Dr. Goldberg says.

Managing complications an art

Practicing surgeons J. Charles Finn, M.D., and Hayes Gladstone, M.D., concur that honesty is the best policy.

"All surgeons encounter complications, and they are not always due to errors and certainly not evidence of malpractice. However, part of the true art of medicine comes in how complications are managed. Disclosing an error and establishing a plan to correct it is important to building a trusting relationship with the patient and that might have a spillover effect for decreasing the likelihood of litigation.


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