MEDICO-LEGAL PITFALLS IN COSMETIC SURGERY AND COSMETIC DERMATOLOGY

By  Dr. Lalit Kapoor 

As you are all aware, there has been an exponential rise in the demand for cosmetic surgery in this country. 

There are many obvious reasons for this viz. the craving for youth and beauty in Society, no doubt fuelled by images in print and electronic media, movies and other communication channels; the mind-boggling advances in Medicine and technology and easy access to these; the steadily rising disposable incomes of people in the wake of economic upturn in the country and the fact that undergoing cosmetic surgery has lost any stigma it may have had in the past. In view of this, cosmetic surgeons have probably never had it so good. Interestingly, this overwhelming demand for surgery has not been dampened by the fact that no Insurance Company re-imburses medical costs of cosmetic surgery!

However, cosmetic surgeons, and indeed the non-surgical cosmetologists / Cosmetic Dermatologists as well, need to recognize the attendant risks of medico-legal liability.  It is worthwhile pre-empting these problems by trying to understand their genesis.

Generally speaking, Cosmetic surgery is considered to be a high-risk specialty as far as malpractice litigation is concerned. This is underscored by the fact that Indian insurance companies have steadfastly refused to underwrite risks of liability following cosmetic surgery. In the Western countries, this is not the case and one can get Insurance cover against this liability. Ironically, the Insurance Companies deny cover to those who need it most, just as Banks are eager to give loans to those who don’t need them. Nevertheless, the good news is that Association of Medical Consultants fought long and hard on this issue and eventually succeeded in getting the  Insurance Company  to cover this liability even though at an added cost. AMC cosmetologists can breathe easy since they can now get malpractice indemnity. They can also consider themselves unique since no other Insurance Policy in the country affords this protection

Getting back to the question: Why are cosmetic surgeons more vulnerable to medico-legal problems?

The following factors may explain this: 

Of course, the possibility of per –operative and post-operative complications would be the same as in other branches of surgery though there are specific complications such as under or overcorrection, asymmetry, implant failure, disfigurement, and so on.

Perhaps, the key preventive measure lies in patient selection. One must understand the motivation, expectations as well as a subconscious desire of the patient before elective surgery. You must discourage wrongly motivated patients especially patients below 18 years. Do not let a patient bully you into an operation or a procedure as it is safer to say ‘No’ before an operation than “Sorry, I couldn’t give you the result you wanted’ after the operation. And for those whom you decide to operate, build realistic expectations.

Three other important points:

📌Exclude financial gain as a criterion for patient selection. I have come across some young practitioners who tend to do certain procedures often on account of the acquisition of a new costly machine 

📌Do not overpromise and underperform. In fact, let it be the other way around.

    📌Know your limitations and undertake to treat patients within the scope of your training and qualifications. 

An issue of the greatest importance is accurate and diligent record-keeping and cosmetic surgeons cannot afford to be lax in this respect. The pre-operative or pre-procedure photographs are important documents and need to be meticulously recorded and preserved. However, a warning that may be sounded in this regard: Do not forget to take explicit written consent of the patient before taking photographs. A number of our members have landed in malpractice claims by patients on account of this.  

Additionally, posting some of these photographs on social media may be quite tempting but must be avoided (except with express consent) as it can become an actionable breach of confidentiality and a very sensitive issue for the patient and a very sticky ethico-legal issue for you!!

Unquestionably, the importance of patient’s consent for surgery cannot be overemphasized. The following points must be remembered:

A vital factor that adds to vulnerability of cosmetic practitioners is the fact that the qualification criteria for cosmetic practice are highly unregulated in this country. Unqualified or sub-qualified persons can call themselves cosmetic practitioners as there are no strict statutory criteria for the same. Advertisements in the lay media by all and sundry claiming to be doing cosmetic practice further compound the problem. On the other hand, in the USA for example, in 21 States only qualified physicians are permitted to use lasers in their practice.

Another important cause of malpractice litigation lies within us viz. the proclivity of many doctors to criticize colleagues, especially the previous treating surgeon. Often this amounts to provoking the patient and many a litigation has its genesis in ill-advised and provocative statements by the second surgeon. This factor can be easily minimized, if not eliminated, by simply resisting the temptation to indulge in one-upmanship.

Lastly, the incidence of allegations by patients of sexual misconduct, or inappropriate behavior against Cosmetic surgeons, is more than the average for all other Specialists. Hence special care must be taken in this regard and male doctors must NEVER examine female patients without the presence of a female attendant or female relative.

Recently, 3 cosmetic surgeons faced medico-legal problems—two in cases of Liposuction and one in a case of mammoplasty. In one case, of Liposuction, the patient demanded that her money be refunded or else she would make a nuisance of herself (hints of blackmail).

Non-surgical cosmetic practitioners are equally vulnerable and as much at risk as their surgical colleagues. Let me give a few illustrative (but real) examples

🔰A 24-year Spanish female model was referred to a Dermatologist by a modeling agency for acne of the face.  She was prescribed Cap Isotretinoin 20 mg and advised to follow- up after 1 month. The patient left for Dubai the next day. After 15 days the dermatologist started receiving a series of emails from the modeling agency asking for answers to the questions of another doctor in Dubai. Why pregnancy was not ruled out in this patient? Why she was not counseled on not getting pregnant? Why lipid profile was not ordered before starting the medication? Legal action was threatened if satisfactory answers were not provided. 

The member was assisted in replying to these queries appropriately and the matter quietened down but not before undergoing much anxiety and having learnt a few lessons.

🔰Tattoo removal resulted in burns and skin necrosis. The doctor said that it was a very simple procedure. Allegation: Doc had used infrared coagulator device. Should have used ultra short pulsed NdYag laser

🔰Excessive scarring resulted after removal of hemangioma in leg of the infant

🔰Missed diagnosis of malignant melanoma leading to spread.

🔰Adverse reaction of drugs is an important cause of allegations of negligence against dermatologists. For example, a patient developed aseptic necrosis of head of femur following long-term use of potent steroids.

About the Author 

Dr.Lalit Kapoor is a General Surgeon practicing in Mumbai. He is the founder of the Medico-Legal Cell, Association of Medical Consultants & is a medico-legal expert assisting affected members with medico-legal problems for over four decades. He is also the author of the book, Better Safe than Sorry- Medico-Legal: Do's & Don'ts.

©Dr.Lalit Kapoor