Avoid Medspa Litigation Claims = Provide Comprehensive Information

Exceptional patient services will do more than just keep your patients happy, they'll also keep you out of court (or may your stay much shorter).

In a recently decided case of James v. Decorato, the defendant medical practitioner was absolved of liability after showing to the court the the patient has been adequately informed about the procedure that she will be undergoing.

Their case stemmed when the patient and plaintiff Rebecca B. James sued the defendants John W. Decorato, M.D. and Aesthetic Pavilion, LLC for alleged negligence and malpractice by the latter. In her complaint, Rebecca claimed there was negligence in the performance of various cosmetic surgeries which included liposuction, blepharoplasty, lipoplasty, autologous gluteal augmentation with fat grafting, submental and neck smartlipo, bilateral transconjunctival lower blepharoplasty with CO2 laser resurfacing, and autologous upper and lower lip augmentation with fat grafting.

She alleged that there the malpractice resulted in the formation of excessive and severe scarring, non-uniform appearance of her abdomen, concave left inner thigh with pain, hypo-pigmented skin under eyes leaving non-uniform skin color on the face, among others.

Further, she said that Dr. Decorato violated the Public Health Law when he allegedly failed to disclose alternatives, risks and benefits that may arise after the treatment. She said that had she known of them, she would not have undergone with the treatments altogether.

In an answer, Dr. Decorato said that the plaintiff was able to sign multiple consent forms which outlined the risks and effects that may happen after the treatment. The defendant doctor also argued that the plaintiff's argument must be summarily dismissed because they only stemmed out of her dissatisfaction with the results of the procedures.

In support, Dr. Decorato submitted to the court the examination done by Dr. Theodore Diktaban, a certified Plastic, Reconstructive as well as Head and Neck Surgeon. Dr. Diktaban indicated that he was able to review the consent forms signed by the plaintiff and found them all clear and complete.

According to Dr. Diktaban's affidavit,

The forms adequately provided for the proposed procedures, alternatives thereto, and the reasonably foreseeable risks and benefits associated therewith, including the need for revisionary surgery. The lack of an informed consent could not be a proximate cause of any of plaintiff's subjective dissatisfaction, which she classifies as injuries. Regarding the issue on malpractice and negligence, the pre-and post-operative care rendered to plaintiff comports with good and accepted medical practice.

He further opined that the results of plaintiff's surgery were devoid of any functional deficits, except for the purported and subjective paresthesias of the left medial thigh.

These claims were opposed by the plaintiff Rebecca and presented the statement of a cosmetic surgeon, Dr. Richard Marfuggi. He claimed that after examining Rebecca, he can say that "with a reasonable degree of medical probability, the complications experienced by plaintiff were the result of Dr. Decorato's failure to follow good and accepted practice".

According to the Supreme Court, the basis for establishing the liability of the physician is the departure of the physician from accepted community standards of practice and this was the proximate or direct cause of the plaintiff's injuries.

The Supreme Court sided with Dr. Decorato and summarily dismissed the case. Dr. Decorato, with the affirmation of the statement of Dr. Diktaban, was able to show that indeed he did not deviate from accepted medical procedures. The Supreme Court noted that the plaintiff's claim of "lack of informed consent" has not been proven. Instead, Dr. Decorato was able to produce in evidence the fact that Rebecca was able to sign the consent forms.

On the other hand, the plaintiff Rebecca and Dr. Marfuggi's affidavits did not show any medical evidence establishing that Dr. Decorato was indeed negligent. According to the Supreme Court, Dr. Marfuggi's recitation of facts failed to address the concern of whether or not this was a departure from accepted practices.

Note to self: make sure that all forms are clear and complete.

Buyer's Remorse In Plastic Surgery

"OMG!! what did I do?! ...

I must be crazy to do this!" said my patient only hours after her tummy tuck. She was in some pain and distress, as the anesthesia was wearing off, and began a tirade of self-disparaging statements reflecting all her worst fears and anxieties about the surgery.

I stopped what I was doing, and sat down with her on the recovery room bed to calm her down. It's amazing how comfortable those recovery room beds are...and the patients seem to really like it when I take my time to explain and review things with them. She did fine after some pain meds and a little small talk, and on her 1 week postop visit, was happy as a clam with her new flat tummy. And that's when I realized just how common "buyer's remorse" is in plastic surgery.

Plastic surgery, especially cosmetic surgery, is elective. That means that it isn't surgery that you need, but surgery that you want. Oftentimes, people overlook the pain and discomfort that is inherent to any surgery. Although, most people who have had plastic surgery, and, gladly, the vast majority of my patients, will say that they are happy with the decisions that they made, a certain segment of the patient population will always have difficulties in adjusting to the postoperative demands, no matter how carefully they were selected by the surgeon or how well surgery was performed.

Every plastic surgeon hones his/her patient selection skills over years of education, training, and practice. The goal of every plastic surgery practice is to only have happy patients. As this is an ideal that will probably never be reached, we surgeons must realize that some of our patients will be unhappy, at various stages of the postoperative period. Those patients need special attention, understanding, and a compassionate review of clinical details. They must be empowered, and be actively involved in the procedures of postoperative recovery. It's also important to give your patients options as to colleagues who may serve as second opinions.

As a patient, if you find yourself unhappy with the results of a cosmetic procedure, take a deep breath and fret not, as it depends on the timing. Most early remorse cases are due to the unexpected, and probably poorly managed, pain and discomfort. Moreover, remorse is clearly correlated with incidence of complications of surgery. In the case of the former, simple and more precise pain control and behavior modification is all that is needed. In the latter, both preoperative and postoperative miscommunication between patient and surgeon is the usual contributing factor. As difficult as it is to do, as a patient you must communicate with your surgeon, even if you believe that he/she is responsible for a poor outcome.

We must realize that we can all end up being the patient who regrets having plastic surgery. It can happen if you're the best patient, or if you have the best doctor. What's important for both of you is to keep the lines of communication open so that proper, just, and adequate resolution is reached. No patient should abandon his/her doctor, and the opposite is just as true.