Aesthetic physicians learn how to provide expert care, assess patients and address complications. But they’re not generally taught about the law and how to avoid or navigate lawsuits, according to Mathew M. Avram, M.D., J.D., who presented on the topic of aesthetic treatments and the law at the 2017 Masters of Aesthetics symposium in August.
“It’s important to recognize that there are different ways that a physician can be liable when providing medical care,” says Dr. Avram, director of laser, cosmetic and dermatology surgery at Massachusetts General Hospital, associate professor of dermatology at Harvard Medical School and president of the American Society for Laser Medicine and Surgery. “One of the ways is under malpractice, or negligence, law. That basically holds that the patient can sue a physician for damages that they suffered if the physician did not perform the procedure within the standard of care that is required for that treatment. The other main way is lack of consent.”
Determining Standard of Care
Malpractice, or negligence, is a breach of a duty that causes harm to the patient, according to Dr. Avram.
“The duty that is required is a reasonable duty of care. …and you have expert witnesses that determine what the standard of care is for a given procedure,” he says.
The plaintiff and defense would have expert testimony in a trial. Other sources for establishing standard of care might be in medical textbooks, in the literature or according to medical society-established guidelines.
“So, there isn’t one-stop-shopping for determining what the appropriate treatment is,” Dr. Avram says. “It depends on the circumstances and the care being provided to that patient. …the law uses the term ‘reasonable,’ and reasonable is not a very specific term. It’s something that requires discussion.”
It’s the physician’s duty, before providing any treatment — whether it’s medical, cosmetic, oral or topical — to explain all the risks and benefits of that treatment.
The best evidence that the physician has fulfilled that duty is with a patient-signed consent.
“If the physician has a consent to perform the procedure, the physician still has the duty to do it in a non-negligent manner,” Dr. Avram says. “The consent form is not going to protect you from the lawsuit. The consent form is just saying that the patient understands the risks and benefits of the procedure, as they were explained by the physician. And the patient sees, on the consent form, what those risks and benefits are.”
Cosmetic physicians should not have patient consent forms that read like mortgage or lease agreements. Rather, the writing should be plain and simple, easy to understand and feature the risks and benefits of a given treatment in big, bold type, according to Dr. Avram.
Physicians still have a duty to also verbally explain a treatment.
At that point, if patients who sign the forms claim they didn’t understand what they were signing, the burden of proof is on them to prove it, according to Dr. Avram.
Indicators of Lawsuit Risk
Physicians who take the steps needed to avoid adverse side effects will decrease potential liability, according to Dr. Avram.
One of the best ways to avoid bad outcomes and potential lawsuits from laser procedures, for example, is to perform the procedures correctly, by watching for endpoints, according to Dr. Avram.
“In other words, when you do certain treatments, there are endpoints that are associated with safe treatment, and there are endpoints that are associated with unsafe treatment,” he says.
When treating vascular lesions with vascular lasers, including pulsed dye lasers, the treatment endpoints should be vessel clearance and transient purpura (including purpura that lasts for several days). But if there’s whitening or graying while using a vascular laser to treat broken blood vessels or rosacea, that’s an indication that the treatment is too strong, Dr. Avram says.
During laser hair removal, appropriate endpoints include perifollicular erythema and edema.
“If you see tissue contraction or changes in the epidermis, that’s an indication that the treatment is not being performed in a safe manner,” he says. “Finally, for tattoos or pigmented lesions, you’d want to see whitening of the epidermis, which is a safe and effective endpoint. Splatter or removal of the entire epidermis with the treatment would be considered an unsafe clinical endpoint.”
The duration of the adverse side effects is also an important indicator of lawsuit risk.
“If something is temporary, there doesn’t tend to be legal consequences; rather, it just goes away with time and hand holding. But as the complication becomes more long-lasting or permanent, the odds that some liability will be attached to it will be greater, because there will be more harm suffered by the patient,” Dr. Avram says.