Legal disputes over informed consent for cosmetic procedures: A descriptive study of negligence claims and complaints in Australia

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Summary

Background

Plastic surgeons and other doctors who perform cosmetic procedures face relatively high risks of malpractice claims and complaints. In particular, alleged problems with the consent process abound in this area, but little is known about the clinical circumstances of these cases.

Method

We reviewed 481 malpractice claims and serious health care complaints resolved in Australia between 2002 and 2008 that alleged failures in the informed consent process for cosmetic and other procedures. We identified all “cases” involving cosmetic procedures and reviewed them in-depth. We calculated their frequency, and described the treatments, allegations, and outcomes involved.

Results

A total of 16% (77/481) of the legal disputes over informed consent involved cosmetic procedures. In 70% (54/77) of these cases, patients alleged that the doctor failed to disclose risks of a particular complication, in 39% patients claimed that potential lack of benefit was not explained, and in 26% patients allegations centred on the process by which consent was sought. Five treatment types—liposuction, breast augmentation, face/neck lifts, eye/brow lifts, and rhinoplasty/septoplasty—featured in 70% (54/77) of the cases. Scarring (30/77) and the need for reoperation (18/77) were among the most prevalent adverse health outcomes at issue.

Conclusion

A mix of factors “supercharges” the informed consent process for cosmetic procedures. Doctors who deliver these procedures should take special care to canvas the risks and possible outcomes that matter most to patients.

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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