2017-18 HSC Section 4 Green Book

Research Original Investigation

Analysis of Rhytidectomy Malpractice Litigation Cases

such as scarring or disfigurement. Therefore, 1 strategy likely to limit the number of rhytidectomy-associated allegations is to institute a comprehensive, presurgical informedconsent pre- sentation for the patient that explicitly details all of the risks and outcomes of a procedure, including “worst-case” cos- metic outcomes (suchas rangeof scarring) and typical results. 18 Limitations Characterization of the factors that determine legal responsi- bility is valuable in educating practitioners about the evolv- ingmedicolegal landscape, but there are several potential limi- tations to this analysis. First, not all of the cases we examined may have progressed far enough before reaching an out-of- court settlement to be included in public court records, such as in the Westlaw database. Rules for inclusion in public rec- ords differ by jurisdiction. Consequently, we likely underes- timated cases that were settled out of court before proceed- ings were initiated. Second, there was significant heterogeneity in the col- lected data available in published court records. Some in- cluded great detail about the allegations and proceedings, but others offered simplified summary statements. This hetero- geneity resulted in inconsistencies in the amount of data avail- able per case and caused the sample sizes for certain aspects of the analysis, such as specialty, to be smaller than the total sample size. Nevertheless, Westlaw has been used in mul- tiple malpractice analyses, 6,23-25 and our analysis has identi- fied certain variables more likely to be associated with unfa- vorable outcomes for physicians in rhytidectomy litigation. Thus, our study canbeused topositivelybenefit physicianedu- cation in the future. Conclusions The expanding field of facial plastic surgery now includes a va- riety of outpatient surgeries performed by plastic surgeons; fa- cial plastic surgeons; ear, nose, and throat specialists; and oph- thalmology-trained surgeons, many of whom are likely to encounter MML associated with rhytidectomy. Although most MMLs in this field were resolved in the defendant’s favor, the cases resulting inpayments (averaging$1.4million) harboredse- vere financial burdens for thedefendants. Common factors cited byplaintiffs for pursuing litigation includeddissatisfactionwith postoperativeappearance,poorcosmesis/disfigurement,andin- adequate informed consent. These factors reinforce the impor- tance of a comprehensive, preoperative informed consent pro- cess,inwhichspecificpotentialrisksandoutcomesarediscussed to limit postsurgery allegations. Intraoperative negligence and facial nerve injurywere significantlymore likely to result inpoor defendant outcomes, representing the most significant modi- fiable factors in judicial liability risk because of their direct as- sociation with patient harm.

to procedures listed on the website of the American Academy of Facial Plastic and Reconstructive Surgery (AAFPRS) noted that alleged deficits in informed consent played a significant role in these litigations overall. Using rhytidectomy as a search term, that earlier study (which also employed theWestlawda- tabase) examined 13 cases related to rhytidectomy; it also ana- lyzed cases for other procedures, including blepharoplasty (n = 39) and rhinoplasty (n = 24). This previous analysis is now 5 years old and was performed using only the terms found on the AAFPRS website in 2012. To our knowledge, our current study is broader, capturing a far greater number of cases (13 vs 89) andmore recent cases (2012 vs 2015). Furthermore, our study included considerations specific to rhytidectomy. Most of the cases in this study (60%) were settled in the defendant’s favor. This judgment is likely the result of the strict criteria, such as duty, breach of duty, harm, and direct causa- tion, that judges insist be met for MML to end in payment. 28 Cases citing facial nerve injurywere significantly less likely to receive outcomes in the defendant’s favor (Figure). These out- comes contrast with those of other allegations, such as inad- equate informed consent, additional procedures required, pa- tient dissatisfaction with postoperative appearance, and postoperative negligence. Such allegations did not appear to increase the likelihood of payment (Table 1), although this out- come may have been because of our inability to detect such statistical differences in some cases. Thesedifferences in judicial decisions suggest thatmistakes made in the operating room tend to end in poor defendant out- comescomparedwithcomplaintsthatdeveloplateron,likelybe- causeof the clear causationbetweenprocedural actions andpa- tient harm, which (along with duty and breach of duty) are 2 of the strongest factors in determiningmedical malpractice liabil- ityandincombatingphysiciannegligence. 29 Surgicaltechniques andpractices, therefore, serveas themost significantmodifiable factors in avoiding physician liability, and surgeons should rec- ognize the significantlypoorer judicial outcomes of cases alleg- ing facial nerve injury or intraoperative negligence. Intraoperative negligence, the largest contributor to rhyti- dectomy allegations at 69%, was particularly relevant be- cause of its significant correlation with poor defendant out- comes. Althoughallegations of poor cosmesis or disfigurement, inadequate informed consent, and patient dissatisfactionwith postoperative appearance did not result in significant detri- ments to defendant outcomes (Table 1), their high incidence stresses to surgeons the importance of discussing specific po- tential complications with their patients. Obtaining proper in- formed consent, for example, requires disclosure of any in- formation that is significant to a patient’s decision to undergo a procedure, 6 yetmost informed consent disputes are over un- disclosed risks. 29 This situation suggests a lack of open, prag- matic, preoperative discussions that enable the surgeon to manage the patient’s expectations, emphasize the proce- dure’s risks and limitations, and explain cosmetic outcomes.

Published Online: February 9, 2017. doi: 10.1001/jamafacial.2016.1782

ARTICLE INFORMATION Accepted for Publication: September 29, 2016.

take responsibility for the integrity of the data and the accuracy of the data analysis. Study concept and design: Mutchnick, Svider, Zuliani, Shkoukani, Carron.

Author Contributions: Drs Mutchnik and Svider had full access to all of the data in the study and

JAMA Facial Plastic Surgery Published online February 9, 2017 (Reprinted)

jamafacialplasticsurgery.com

Copyright 2017 American Medical Association. All rights reserved.

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