Legal Implications Related to Plastic Surgery

December 1, 2018

Legal Implications Related to Plastic Surgery 


Plastic surgery is a challenging profession.  Whether reconstructive or aesthetic, patients come to a plastic surgeon with strong personal feelings about their medical issues and expectations.  Given patient expectations on the outcomes concerning their body and outward appearance, plastic surgeons are quite likely to confront and deal with legal issues or claims.  


It is important to be aware of the types of legal matters that plastic surgeons are likely to come across in their practice.  With awareness comes foresight, and foresight allows for proactive planning and risk mitigation. The kind of proactive actions that a plastic surgeon can take to protect his or her practice also improves patient safety, providing a double incentive to spend the time becoming familiar with the intersection of plastic surgery and the law.  This series is designed to give plastic surgeons an overview of those legal issues.  


Legal matters are involved in every aspect of your practice 


Plastic surgeons can have a significant interaction with the legal system through patient care. Surgeons are in a profession charged with managing injuries and diseases.  Patients initiate a doctor-patient interaction as a result of a variety of events, either unfortunate or inevitable: auto-accidents, work injuries, sports injuries, complications from prior medical procedures and disease.   

From the patient's perspective, some of these causes of their injury or medical situation may result in litigation. Physicians become involved by documenting the injury and the remedial procedures, estimating future medical care (and its cost), and giving a medical opinion on the existence or extent of a disability or lasting injury. These events lead to a doctor's participation in the legal system, through production of medical records, to sworn testimony at a deposition, and sometimes through testimony at trial.  


In any interaction with the legal system, a medical professional still has to comply with their own legal obligations. Among them are the rules imposed by the Health Insurance Portability and Accountability Act (HIPAA): that statute requires written consent before you can discuss any patient information with anyone not involved in the patient's care. An attorney that understands your legal obligations will provide you with an authorization signed by your patient (their client) permitting you to discuss the patient’s care and treatment. You are legally prohibited from discussing the patient’s information without such authorization. If an attorney seeks protected patient information from you without a signed authorization, ask the attorney to provide one and confirm it with your patient. If you receive a deposition notice, make sure that you have authorization to discuss your patient's medical care. 


The physician as witness: describing patient care or providing expert testimony


If you are a treating physician, attorneys will want you to provide and discuss a narrative of your patient interactions. This will include your patient care and professional diagnoses, your knowledge of the patient's past medical history and treatments, and any future concerns you or the patient may have concerning their medical condition. As part of the evidence in support of their legal position, attorneys will also seek your answers to specific questions concerning your patient care. 

You must be prepared to discuss the patient's medical record, as well as any additional notes or recollections; the source of your knowledge (whether patient report or another source), and the facts on which you based your diagnosis, treatment or opinion.  It is common to state that your opinion is based on a review of medical records and other documents, discussions with (and disclosures by) the patient, and that your conclusions and opinions are based on your training and experience. 

Be precise in describing the materials that you relied upon in reaching your conclusions; you may be provided with certain documents designed to sway your opinion, or you may later discover additional information that alters or changes your opinion. An accurate description of the documents that you consulted will provide a basis for any change in your opinion. 


These elements of your narrative report and discussions with the attorney should be very factual; your inferences should be kept to a minimum. Be honest and forthright in describing concerns over the patient's prior medical history and future concerns about their treatment and rehabilitation. Any attempt to stretch the truth or overreach in describing the patient's care or prognosis will subject you to strong cross examination.  


Interacting with the legal system as a medical expert


Doctors may also be asked to provide an opinion as a medical expert. The procedures surrounding expert testimony should be discussed thoroughly with an attorney: you will have to provide any written records that you kept or which you relied upon in reaching your opinion; you may also be asked for drafts of any written opinion.  You will be asked what qualifies you as an expert on the particular subject matter of your testimony, as well as the professional materials that you consult as an expert in your field. An opposing counsel can take advantage of an unprepared medical expert, so it is imperative that you consult with an attorney to prepare for your testimony. 


Additionally, legal events are frequently continued or postponed; for that reason, you should always demand payment in advance. A portion of that advance may be non-refundable if your testimony is postponed, as it may impact your practice and your patient care.  Because you cannot predict in advance how long your testimony might take (particularly in a deposition), you should also establish a fee schedule based on a minimum period of time (2 hours or a half-day) tied to your hourly rate.  As either a treating physician or an expert, you can also request that your deposition testimony be scheduled for the beginning or end of the day, so as to minimize the impact on your patient practice.  


The next several posts will describe the types of legal matters that will confront a plastic surgery practice, and offer advice on how to prepare for such matters or reduce your risk of being a defendant in such claims. 


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