Journal of Plastic, Reconstructive & Aesthetic Surgery
Legal disputes over informed consent for cosmetic procedures: A descriptive study of negligence claims and complaints in Australia
Introduction
Plastic surgeons and other doctors who perform cosmetic procedures are more likely to experience litigation or formal complaints than most other specialists.1, 2, 3 Practitioners have attributed this elevated medico-legal risk to a variety of factors, including unrealistic patient expectations, aggressive plaintiffs' lawyers,4 and inadequate pre-operative assessment5 and bad behaviour by a few substandard providers. Patient advocates and other commentators point to the commoditisation of medicine,6, 7 promotion of suspect aesthetic norms,8 euphemistic portrayal of outcomes,9 and departure from established processes and standards for obtaining informed consent.10
A common thread in these perspectives is that the informed consent process is crucial in the context of cosmetic treatments11, 12; it exerts a strong influence on both patients' perceptions of quality and doctors' risks of experiencing legal disputes. However, there is very limited empirical information on the circumstances and nature of medico-legal disputes in this area.
In a recent analysis13 of nearly 10,000 medico-legal disputes, we found that plastic surgeons were sued and complained against over consent issues at more than double the rate of any other specialty or surgical subspecialty. In this study we analyse the cases that involved plastic surgeons and other cosmetic proceduralists. Our aim was to describe the frequency, characteristics, clinical circumstances and outcomes of these cases, and inform efforts to prevent them.
Section snippets
Study context
Avant Mutual Group Limited (Avant) and the Health Services Commissioner of Victoria participated in the study. Avant is Australia's largest provider of medical indemnity insurance, providing coverage to more than half of the country's registered medical practitioners. The Health Services Commissioner has statutory responsibility for resolving complaints about health care providers in Victoria, Australia's second most populous state with 5.6 million residents. Complaints must be in writing but
General characteristics
A total of 16% (77/481) of informed consent disputes involved cosmetic procedures. The patients in 88% of these cosmetic cases were female and patients' median age was 42 years (Table 1). In nearly two thirds of cases (47/77), the practitioner against whom the allegations were made was a plastic surgeon. The vast majority (72/77) of the procedures were performed in privately-owned health care facilities.
Descriptions of the clinical circumstances involved in a selection of cases are provided in
Discussion
In a sample of informed consent disputes drawn systematically from negligence claims and health care complaints, one in six cases related to cosmetic procedures. Nearly 90% of the patients involved were female, which is broadly in line with the proportion of cosmetic procedures performed on women.18 Five procedures—liposuction, breast augmentation, face/neck lifts, eye/brow lifts, and rhinoplasty/septoplasty—featured in nearly three-quarters of the cases. The most common allegations were that a
Conclusion
The informed consent process, an integral part of modern health service delivery, takes on special importance in aesthetic medicine.28 Although cosmetic procedures have lower risks of catastrophic outcomes than many other types of surgery, the informed consent process that surrounds it has “supercharged” elements. High expectations and low tolerance for risk on the patient side meet competitive market pressures on the provider side, and complex social and psychological factors may also be in
Ethics approval
This study was approved by the University of Melbourne Ethics Committee.
Previous communication
This paper is not based on any previous communication to a society or meeting.
Funding
This study was supported by a Linkage Grant from the Australian Research Council (LP0989178), with partner contributions from the Office of the Health Services Commissioner of Victoria, the Victorian Department of Health, and Avant Mutual Group Limited. Dr Studdert was supported by a Federation Fellowship from the Australian Research Council. Dr Gruen was supported by a Career Development Award from the National Health and Medical Research Council.
Acknowledgements
This study was made possible by the generous assistance and support of the leadership group and staff of Avant Mutual Group, and the Health Services Commissioner of Victoria, Ms Beth Wilson, and her staff, particularly Ms Lynn Griffin. We thank them. We also thank Dr Paul Nisselle who helped conceive and launch this project.
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Cited by (36)
Medical negligence - Key cases and application of legislation
2020, Annals of Medicine and SurgeryCitation Excerpt :Cosmetic surgeons and professionals face high risks of negligence claims. An Australian study reviewed 481 malpractice claims (2002–2008), showing 16% of legal disputes involving consent over cosmetic procedures, 70% claiming non-disclosure of a particular complication by their medical provider; and liposuction, breast augmentation, face/neck lifts, eye/brow lifts, and rhinoplasty/septoplasty composing 70% of cases [26]. The key liability-related segment of CLA legislation is CLA 5O (Standard of care for professionals) which excludes liability if the standard is widely accepted by Australian peers, even if one of multiple differing non-consensus standards [16].
Perioral Rejuvenation
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2020, Journal of Oral and Maxillofacial SurgeryCitation Excerpt :Litigation with surgical procedures has become a topic of increasing interest in the current data.4,5,21-24 Providers who perform cosmetic surgery procedures are more likely to experience litigation than most other specialists, and many have accredited this to the elevated medicolegal risk owing to unrealistic patient expectations, aggressive plaintiff lawyers, and inadequate perioperative assessment.25 Defensive medicine is becoming commonplace in all medical disciplines.26
Facial surgery for cosmetic purposes: Practice guidelines
2019, Journal of Stomatology, Oral and Maxillofacial SurgeryCitation Excerpt :the surgeon's own opinion regarding whether these expectations are realistic and whether the request for surgery is admissible. How to assess the relevance and risks of surgery as well as patient information? [45–69] (C) In order to better assess the relevance of surgery, it is recommended to take into account the patient's psychological state.
A decade of litigation regarding surgical informed consent in the Netherlands
2019, Patient Education and CounselingCitation Excerpt :According to annual reports of European, United States and Australian health services the number of malpractice claims and MDB complaints and the associated costs have risen in the past years [24–27]. A substantial number of these claims and complaints is due to omissions during the informed consent process [28–32]. In the Netherlands [6], one in every six surgeons and one in seven orthopaedic or plastic surgeons was faced with an official SIC related complaint in the previous 5 years [33].
Completion of hand-written surgical consent forms is frequently suboptimal and could be improved by using electronically generated, procedure-specific forms
2017, SurgeonCitation Excerpt :It is difficult to estimate the impact of poorly completed consent forms on patient complaints and negligence claims. Such claims are rarely the result of a single cause and more commonly arise from a multiplicity of factors, amongst which issues of consent and inadequate clinical record keeping are certainly prominent.5–7 A recent retrospective Australian study by Gogos et al. found that 5% of patient complaints and malpractice claims involved alleged deficiencies in the consent process.6