Breast Surgery Special Topic
A Look Inside the Courtroom: An Analysis of 292 Cosmetic Breast Surgery Medical Malpractice Cases
Aesthetic Surgery Journal 2014, Vol 34(1) 79–86 © 2013 The American Society for Aesthetic Plastic Surgery, Inc. Reprints and permission: http://www.sagepub.com/ journalsPermissions.nav DOI: 10.1177/1090820X13515702 www.aestheticsurgeryjournal.com
Angie M. Paik, BA; Leila J. Mady, PhD; Aditya Sood, MD, MBA; Jean Anderson Eloy, MD, FACS; and Edward S. Lee, MD
Abstract Background: Malpractice claims affect the cost and quality of health care. Objective: The authors examine litigation in cosmetic breast surgery and identify factors influencing malpractice litigation outcomes. Methods: The Westlaw database was searched for jury verdict and settlement reports related to medical malpractice and cosmetic breast surgeries. Cases included for analysis were examined for year, geographic location, patient demographics, procedure performed, alleged injury, causes of action, verdict, and indemnity payments. Results: Of 292 cases, the most common injury sustained was disfigurement (53.1%). Negligent misrepresentation had a 98% greater chance of resolution in favor of the plaintiff (reative risk [RR], 1.98; 95% confidence interval [CI], 1.41-2.79), and fraud had a 92% greater chance of disposition in favor of the plaintiff (RR, 1.92; 95% CI, 1.32-2.80). The most common causes of action cited were negligence (88.7%) and lack of informed consent (43.8%). One hundred sixty-nine (58.3%) cases resulted in favor of the defendant and 121 (41.7%) cases were disposed in favor of the plaintiff; 97 (33.4%) cases resulted in damages awarded and 24 (8.3%) cases resulted in settlement. No significant difference was found between the medians of indemnity payments awarded to plaintiffs ($245 000) and settlements ($300 000). Conclusions: Based on this study, negligent or intentional misrepresentation strongly favors plaintiffs in either awarded damages or settlements in cases of cosmetic breast surgery litigation. This study emphasizes that transparency and adequate communication are at the crux of the physician-patient relationship and are tools by which plastic surgeons may reduce the frequency of litigations, thereby containing health care costs at a minimum. Keywords cosmetic breast, medical malpractice, breast augmentation, breast reduction, breast implant, mastopexy Accepted for publication May 20, 2013.
There is an abundance of data suggesting that medical error rates exceed error rates of other industries, such as the airline and finance sectors, in which comparable error rates to those found in health care would be unacceptable.1,2 With adverse events secondary to medical errors costing an estimated tens of billions in unnecessary expenditures and leading to an estimated 98 000 avoidable hospital deaths per year, this matter cannot be taken lightly.3 In parallel to increasing medical errors, there is a rise in the cost of medical malpractice, collectively accounting for nearly $10 billion in costs for health care providers annually.4 The burden of these costs inevitably falls on
From the Department of Surgery, Division of Plastic Surgery, Department of Otolaryngology - Head and Neck Surgery, Department of Neurological Surgery, Rutgers New Jersey Medical School, Newark, New Jersey.* *When this manuscript was written, the institution was known as the University of Medicine and Dentistry of New Jersey. As of July 1, 2013, the institution has changed to Rutgers Biomedical and Health Sciences. Corresponding Author: Ms Angie M. Paik, Rutgers New Jersey Medical School, 140 Bergen St, Suite E1620, Newark, NJ 07103, USA. E-mail: [email protected]
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both providers and consumers of health care, as physicians invest valuable time, money, and energy defending claims rather than delivering quality care and health care consumers continue to pay higher insurance premiums.5 Data suggest that, when compared with other specialties, plastic surgery faces one of the highest proportions (13%) of physicians facing a malpractice claim.6,7 Literature on the specificity of claims against plastic surgeons is sparse to date, but a 2010 review published in the Journal of Plastic, Reconstructive, and Aesthetic Surgery found that a majority of litigation cases against plastic surgeons has been due to lack of informed consent, poor cosmetic results, scarring, or lack of expertise in performing a given procedure.7 Multiple studies have shown that breast-related surgeries account for 37% of overall claims against plastic surgeons.8,9 The impact of malpractice suits inevitably affects the cost and quality of health care, and cosmetic breast surgery is no exception to such litigation. Few studies have been done in the United States with regard to understanding the phenomenon and implications of malpractice suits in cosmetic breast surgery. Although prior reports have shed light on malpractice litigation trends in cosmetic breast surgery,7,8,10-12 none has provided a comprehensive analysis of this phenomenon in the United States. The objectives of this study were to examine litigation in cosmetic breast surgery and identify factors influencing malpractice litigation outcomes. After identifying and understanding the factors affecting litigation and medical errors, practicing plastic surgeons may successfully develop and implement preventative strategies to minimize legal action and improve patient care.
Methods The Westlaw legal database (Thomson Reuters, New York, New York) is a primary source used by legal professionals to gather information regarding legal cases, jury verdicts and summaries, and trial court documents. The database is available by subscription to the public and contains no protected patient information, thereby requiring no institutional review board (IRB) review. Westlaw accumulates cases from all publicly available state and federal court records, which are obtained from numerous vendors that differ by jurisdiction. The comprehensiveness and variability of case information compiled within the database is influenced by the variety of commercial vendors. Although a proportion of jury verdict and settlement reports is obtained through voluntary submission by attorneys, most jurisdictions attain case information through nonvoluntary submission by legal professionals.13-15 Records obtained via the latter frequently classify legal parties involved as “anonymous” or “confidential” to protect identifying information. Although litigation settled out of court may prohibit the generation of publicly available records for such cases, Westlaw contains ample court records and case details and has been widely used to ascertain case law related to claims of medical malpractice.13-20
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Figure 1. Search methodology for cosmetic breast surgery malpractice jury verdicts using the Westlaw database (Thomson Reuters, New York, New York). Search conducted in April 2013.
Two authors (AMP, LJM) searched the database for jury verdict and settlement reports related to medical malpractice and cosmetic breast surgeries. Queries were not limited by state or date. Specific search terms included mammoplasty, reduction, augmentation, mastopexy, enhancement, implant, breast surgery, and medical malpractice. The search yielded 527 results that were independently reviewed for applicability and completeness. Of the 527 initial results, 235 cases were excluded: duplicate cases (132), non–breast surgeries (72), breast reconstructive surgeries (28), allegations involving a nonsurgical physician or allied health professional (2), and cases involving a cross-complaint (1). The remaining 292 jury verdict and settlement reports were included for analysis and examined for year of action, geographic location of action, patient demographics, procedure performed, allegations of injury, cause of litigation, verdict, and indemnity payments. All data were collected in April 2013. Nonparametric statistical analysis was conducted using the Fisher exact test for comparison of categorical data, and the MannWhitney U test was used for evaluation of continuous variables (InStat; GraphPad Software, Inc, La Jolla, California). Statistical significance was set at P < .05.
Results Two hundred ninety-two cases were examined that matched the search criteria and involved cosmetic breast surgery (Figure 1). Plaintiff sex was overwhelmingly female (98.6%), although 1.4% of complaints were found to arise from men. Median patient age was 36 years (range, 14-72 years). In contrast, 90.1% of physician defendants were men. The dates of the jury verdicts or settlements ranged from years 1985 to 2012 (median, 2002),
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Figure 3. Cosmetic breast procedures resulting in litigation. Four cases categorized as other included breast lipectomy (n = 1), breast liposuction (n = 1), pectoral implants (n = 1), and unspecified (n = 1).
Figure 2. (A) Frequency of cases by the year of jury verdict or settlement and (B) geographic distribution by state. The District of Columbia included 1 case, not shown on map. Trend line in panel A represents moving average. Other cases included breast lipectomy (n = 1), breast liposuction (n = 1), pectoral implants (n = 1), and unspecified (n = 1).
with the greatest number of litigations occurring in 2006 (n = 31; Figure 2A). Over the time period observed, there was an overall trend of increasing malpractice-related cosmetic breast surgery litigation. Court records spanned 37 states, in addition to 1 case from the District of Columbia. The geographic distribution of cases by state is represented in Figure 2B. California experienced the greatest number of cases (n = 63), followed by New York (n = 40) and Florida (n = 35). The most common procedures resulting in litigation were augmentation (n = 115, 39.4%) and reduction (n = 110, 37.7%). Notably, a lower incidence of litigation was found in augmentation or reduction procedures accompanied by mastopexy (n = 20, 6.8% and n = 3, 1.0%, respectively). The frequency of litigation by procedure type is illustrated in Figure 3. Alleged injuries cited for litigation were varied and are shown in Figure 4. The most common injury sustained as a result of cosmetic breast surgery was disfigurement (n =
Figure 4. Alleged injuries sustained as a result of cosmetic breast procedures. The sum is greater than 100% as multiple injuries were sustained in some cases. Injuries classified as “other” included unspecified (n = 3), injuries from other surgeries (n = 2), vancomycin toxicity (n = 1), pulmonary embolism (n = 1), damaged prostheses (n = 1), malignancy discovery intraoperatively with failure to stop the procedure (n = 1), and anesthetic-induced hepatitis (n = 1).
155, 53.1%). The second most common injury cited was necessitation of a revision procedure (n = 124, 42.5%), followed next in frequency by scarring (n = 113, 38.7%). Iatrogenic injury (n = 19, 6.5%) was among the least common allegations named in malpractice related to cosmetic breast procedures. Iatrogenic injury included electrocautery or chemical burns, contusions, pneumothorax or pleural interruptions, torn pectoralis muscles, and 1 case of corticosteroid-induced Cushing syndrome. Beyond cutaneous or iatrogenic injuries, psychological injuries, including emotional distress or pain, were alleged in 5.8% (n = 17) of cases. Death (n = 8, 2.7%) was the least common reason for litigation. Three deaths were related to excessive infiltration of local anesthetic, 3 were associated with failure to diagnose lung or heart disease prior to surgery, and 2 deaths resulted secondary to infection (ie, aspiration pneumonia or septic shock).
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Figure 5. Causes of action in medical malpractice claims. The sum exceeds 100% as multiple causes of action were cited in some cases. Causes of action categorized as “other” included breach of warranty (n = 2), failure to train employees (n = 1), and development of psychiatric illness secondary to the procedure (n = 1).
The causes of action cited for litigation in cosmetic breast surgery are represented in Figure 5. Negligence, either through lack of appropriate knowledge or skill or departure from the standard of care, was explicitly alleged in 88.7% (n = 259) of cases, constituting the most common legal action for medical malpractice. The second most common cause of action was lack of informed consent, cited in 43.8% (n = 128) of cases. Patients may allege lack of informed consent when physicians fail to comprehensively describe the risks associated with cosmetic breast procedures and to offer alternative therapies for a selected procedure prior to undergoing surgery. Failure to diagnose and/or treat an injury related to the cosmetic breast procedure (n = 37, 12.7%) was the third most common cause of action, followed by loss of consortium (n = 22, 7.5%), in which the cause of action is initiated by a family member, and then negligent misrepresentation (n = 10, 3.4%), in which the physician distorts his or her credentials and/or effectiveness and safety of the recommended procedure. Of the 292 cases examined, 290 (99.3%) contained information concerning overall case verdicts. One hundred sixty-nine (58.3%) cases resulted in favor of the defendant, and 121 (41.7%) cases were disposed in favor of the plaintiff, of which 97 (33.4%) cases resulted in damages awarded and 24 (8.3%) cases resulted in settlements (Figure 6A). Monetary damages awarded to plaintiffs ranged between $4500 and $10 000 000, with mean and median awards of $885 306 and $245 000, respectively. Settlements ranged between $5716 and $1 500 000, with mean and median settlements of $481 055 and $300 000, respectively. No statistically significant difference was found between the medians of indemnity payments awarded to plaintiffs and settlements (Mann-Whitney test, P = .64) (Figure 6B). Median ages, however, between cases of a plaintiff award or settlements differed significantly (Mann-Whitney test, P = .02), with median ages of 36 and 30 years, respectively (Figure 6C). For all alleged injuries, no significant difference was found between type of injury and case outcome (Fisher
Figure 6. (A) Disposition of cases. (B) Indemnity payments for plaintiff decisions comparing damages awarded and settlements, plotted on a logarithmic scale. Damages awarded ranged from $4500 to $10 000 000; dashed line, median payment $245 000. Settlements ranged from $5716 to $1 500 000; dashed line, median payment $300 000. (C) Plaintiff ages by indemnity payments comparing damages awarded and settlements. Ages of plaintiffs awarded damages ranged from 22 to 63 years; dashed line, median age 36 years. Ages of plaintiffs who received settlements ranged from 20 to 60 years; dashed line, median age 30 years.
exact test, P > .05). Of the causes of action cited for litigation, negligent misrepresentation and fraud were significantly more likely to result in dispositions, either through damages awarded or settlements, in favor of plaintiffs (Fisher exact test, P = .02 and P = .04, respectively). Cases in which negligent misrepresentation was cited had a 98% greater chance of resolution in favor of the plaintiff
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(relative risk [RR], 1.98; 95% confidence interval [CI], 1.41-2.79). Cases in which fraud was cited had a 92% greater chance of disposition in favor of the plaintiff (RR, 1.98; 95% CI, 1.32-2.80). Conversely, citing lack of informed consent was significantly less likely to result in damages awarded or settlements (Fisher exact test, P = .004). Those cases citing lack of informed consent had a 35% less chance of an outcome favoring the plaintiff (RR, 0.65; 95% CI, 0.48-0.87).
Discussion In the courtroom, a physician defendant is judged based on medical standards of what the average physician would do in everyday practice. A physician is deemed “negligent” when he or she deviates from this standard of care. To be awarded compensation for medical negligence, the plaintiff must establish 4 factors: (1) the physician owed a professional duty to the patient, (2) the physician breached this duty by deviating from the standard of care, (3) the patient was harmed through infliction of personal injury or wrongful death, and (4) the harm inflicted was directly caused by the physician’s breach of duty.21,22 Our study describes cosmetic breast litigation cases for which trial or settlement dates ranged from 1985 to 2012. In looking at the trend across the years, we noted an overall increase in incidence up until 2006, when there was a peak of 30 reported cases. After this peak, the yearly incidence appeared to trend down, but this only reflects those malpractice claims that progressed to a trial and does not necessarily represent a downward trend in overall litigation claims. California, New York, and Florida experienced the greatest number of cosmetic breast litigation cases. National statistics from 2012 reported that the Middle Atlantic (including New York), the Pacific (including California), and the South Atlantic (including Florida) regions of the United States accounted for the most cosmetic procedures.23 These results are most likely a reflection of these national statistics, although one should consider the possibility that these states may have a more litigious culture. The most commonly litigated injury was disfigurement. Scarring, asymmetry, and dissatisfaction with size were other common injuries sustained related to a complaint in aesthetic result. In a study that examined psychological processes and motivational factors, Solvi et al24 concluded that femininity was the basic motivational drive for women to undergo breast augmentation. The generating factors behind this drive were personal experience and thoughts related to the size and shape of their breasts (ie, appearance dissatisfaction, ideal figure, self-esteem, comments, clothes, and sexuality). It would stand to reason that if what motivates a patient to undergo cosmetic breast surgery is her own notion of a personalized ideal, anything that falls short of this ideal will illicit dissatisfaction. Solvi et al24 also determined that interaction with former cosmetic breast patients through the media or personal relationships played a significant role in eliciting a
desire to undergo breast augmentation. With the popularity of reality television programs focusing on makeovers and cosmetic plastic surgery procedures (eg, The Swan, Extreme Makeover), patients are using sensationalized media milieus as their aesthetic standards and as a means of cosmetic procedure self-education. In a study reviewing plastic surgery reality television viewership, patients who were deemed “high-intensity viewers” felt that they were more knowledgeable about the risks of surgery.25 Television programs misconstrue patient evaluation and follow-up care via editing mechanisms such that viewers may not appreciate a comprehensive assessment of the benefits and risks of a procedure. The second most common action cited was lack of informed consent. Cases reporting deficits in informed consent were usually founded on claims that while the patient signed a consent form, the actual risks of the procedure were never discussed with them in depth. The importance of proper informed consent has been previously stressed as a means of decreasing litigation and fostering a better physician-patient relationship.21,26-31 Failure to fully educate the patient on the procedure may prompt the patient to declare negligence or even assault. Consent may be obtained at least 24 hours before a procedure, during which time the surgeon explains the procedure and all the risks associated with cosmetic surgery.21 Serial photographs or videos of previous patients are a helpful supplement to the discussion as it allows patients to visualize the outcome that may help their decision making. Some authors even suggest that this counseling process be done early on during patient evaluation so that the risks can be further discussed with the patient’s family.26,28,30 In addition to what is cited in the literature, it may be helpful to schedule 2 preoperative visits during which plenty of time is devoted to discussion of the risks of the procedure. We advocate using procedure-specific consent forms (such as those available from the American Society for Aesthetic Plastic Surgery) that review the risks most highly associated with the surgery to be performed. For breast augmentation, it may also be helpful to provide information booklets directly from the implant manufacturer to educate patients on the prosthesis they are receiving. Monetary damages awarded fell into a large range, but there was no significant difference found between the median of indemnity payments awarded to plaintiffs or to settlements. We were able to appreciate a statistically significant difference in the plaintiff age where those cases with a plaintiff award had a higher median age (36 years) than those resulting in settlement (30 years). While this difference in median age is not dramatic, it suggests that in cases with a plaintiff-favored outcome, the jury is more inclined to award an older plaintiff, whereas cases are more inclined to result in a settlement with a younger plaintiff. The influence of age in cases that settle may be a reflection of the financial burden of the plaintiff. Younger plaintiffs are more likely to have financial hardships and may be more willing to accept a settlement that guarantees compensation. It has been
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shown in other studies that a jury is more sympathetic toward a younger plaintiff and is more likely to offer a higher amount awarded. It is possible that plastic surgeons are aware of this age bias and prefer to settle in cases where they feel there is an increased chance of judgment in favor of the plaintiff.18,19 Our study revealed a significant relationship between certain causes of action and case outcome. Those that cited either negligent misrepresentation or fraud were significantly more likely to result in damages awarded or settlements in favor of plaintiffs (98% and 92% more likely, respectively). Negligent misrepresentation occurred when the plastic surgeon portrayed a false or skewed representation about the procedure or credentials but did not explicitly or intentionally communicate untruths regarding either. Misrepresentation that is intentional, with purpose to deceive a patient, is characterized as fraud. Plaintiffs can claim that fraud has been committed if the defending physician deliberately altered or falsified medical records, including destructing, suppressing, or tampering with material medical information. Our study shows that misrepresentation, whether negligent or fraudulent, is an allegation that must be avoided. All physicians should be forthright about their experience with the procedure as well as their credentials and training. A cosmetic practice is a business, and while it is tempting to package oneself as an “expert” to boost confidence in clientele, this claim may lead to legal repercussions. Those who cited a lack of informed consent as a cause of action were significantly less likely to receive a plaintifffavored outcome (35% less likely). This finding reveals just how critical the informed consent process is in protecting physicians. Even though the plaintiff may allege that a proper verbal discussion of the risks and alternatives of a procedure was not conducted, the legal system may hold the plaintiff accountable once she or he commits a signature to a written document, particularly for nonemergent, elective surgical procedures. While it is reassuring to know that the informed consent process is an effective means of protection, the value of open communication and discussion between patient and physician cannot be stressed enough. This study is the first to use the Westlaw database in describing US malpractice litigations in cosmetic breast surgery. Westlaw is a comprehensive legal research database that is well known among lawyers and legal professionals. It has been successfully used in medicolegal studies in other specialties to describe the factors and outcomes of various injuries and procedures.16,18-20,32-34 The scope of litigation reports included in this analysis spans 38 states and dates back to the 1980s, providing a perspective on trends in medical malpractice over time. The decision to use Westlaw over other online legal databases (ie, LexisNexis, Bloomberg Law, VerdictSearch, etc) was based on its reputation, quality of case entries, and ease of navigation. Westlaw has won numerous awards, and in the 2012 New York Law Journal Reader Rankings and the 2013 Best of The National Law Journal,
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Westlaw won in the categories of Online Research Provider and Online Legal Research Vendor, respectively, along with LexisNexis.35,36 Our institution has previously compared Westlaw and LexisNexis,19 and in our experience, Westlaw was more user-friendly to the layperson with comparable content and search results. Other studies using LexisNexis confirm a similar level of data extraction capability.37 There were several limitations inherent in the Westlawbased methodology. Most Westlaw cases are obtained from federal and state court records, but some are voluntarily submitted by attorneys.18 This may create gaps in the database of those cases that were not submitted based on the attorney’s discretion. Another limitation was the heterogeneity in content of the cases in which some cases were not as detailed as others. Westlaw may not capture claims that agreed to settlements outside of the courtroom but did not progress far enough for inclusion in publicly available federal and state court records—a practice that may be prevalent in cosmetic plastic surgery. Last, when determining the verdict or amount awarded in a case, the jury may take other factors into consideration that are not readily discernable in Westlaw. The cost of malpractice insurance varies by specialty to reflect the expected frequency of claims and awards that are paid. While the intent of this cost is to motivate physicians to avoid accidental harm, physicians are described as practicing “defensive medicine” in response, which has an important influence on overall health care costs.38 Defensive medicine includes either supplying excessive and often detrimental care that is not cost-effective or declining to supply care altogether. Our study aimed to identify the reasons and associated factors of litigation in cosmetic breast surgery. We believe that our findings, including the necessity for transparent communication with patients, should be taken into consideration when building a cosmetic practice.
Conclusions Our study reviewed 292 medical malpractice cases related to cosmetic breast surgery that proceeded to trial. We identified 14 injuries commonly alleged in cosmetic breast surgery litigation. Each of these, where appropriate, must be clearly enumerated on consent forms as well as thoroughly discussed in person not only to provide complete patient care but also to protect physicians from the medicolegal repercussions of malpractice, both financially and vis-à-vis one’s reputation. Our study also elucidated specific allegations that were more likely to result in indemnity payments to plaintiffs, providing insight into attributes of the physician-patient relationship valued by our legal system. Our analysis revealed that any form of misrepresentation, whether negligent or intentional, strongly favors the plaintiff in either awarded damages or settlements. This study emphasizes that transparency and adequate communication are at the crux of the physician-patient relationship and are tools by which plastic surgeons may
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reduce the frequency of litigation, thereby containing health care costs at a minimum.
Disclosures The authors declared no potential conflicts of interest with respect to the research, authorship, and publication of this article.
Funding The authors received no financial support for the research, authorship, and publication of this article.
References 1. Quality Interagency Coordination Task Force (QuIC). Understanding medical errors. In: Doing What Counts for Patient Safety: Federal Actions to Reduce Medical Errors and Their Impact. Washington, DC: QuIC; 2000. http:// www.quic.gov/report/mederr4.htm. Accessed May 3, 2012. 2. Leape LL. Institute of Medicine medical error figures are not exaggerated. JAMA. 2000;284(1):95-97. 3. Stefl ME. To err is human: building a safer health system in 1999. Frontiers Health Serv Manage. 2001;18(1):1-2. 4. United States General Accounting Office. Medical liability: impact on hospital and physician costs extends beyond insurance. http://www.gao.gov/assets/230/221826.pdf. Accessed April 20, 2013. 5. Seabury SA, Chandra A, Lakdawalla DN, Jena AB. On average, physicians spend nearly 11 percent of their 40-year careers with an open, unresolved malpractice claim. Health Aff (Millwood). 2013;32(1):111-119. 6. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629-636. 7. Mehta S, Farhadi J, Atrey A. A review of litigation in plastic surgery in England: lessons learned. J Plast Reconstr Aesthetic Surg. 2010;63(10):1747-1748. 8. Richards E, Vijh R. Analysis of malpractice claims in breast care for poor cosmetic outcome. Breast. 2011;20(3):225228. 9. Dyer C. Clinical negligence claims against plastic surgeons rise “significantly.” BMJ. 2012;344:e298. 10. Ifeacho SN, Pothier DD. A comparative analysis of the litigation rate against the NHS following rhinoplasty by otorhinolaryngologists and plastic surgeons. Clin Otolaryngol. 2009;34(2):177-178. 11. da Silva DB, Nahas FX, Bussolaro RA, de Brito MJ, Ferreira LM. The increasing growth of plastic surgery lawsuits in Brazil. Aesthetic Plast Surg. 2010;34(4):541-542. 12. Lyu SY, Liao CK, Chang KP, Tsai ST, Lee MB, Tsai FC. Analysis of medical litigation among patients with medical disputes in cosmetic surgery in Taiwan. Aesthetic Plast Surg. 2011;35(5):764-772. 13. Reilly BK, Horn GM, Sewell RK. Hearing loss resulting in malpractice litigation: what physicians need to know. Laryngoscope. 2013;123(1):112-117.
14. Lydiatt DD. Medical malpractice and facial nerve paralysis. Arch Otolaryngol Head Neck Surg. 2003;129(1):50-53. 15. Nash JJ, Nash AG, Leach ME, Poetker DM. Medical malpractice and corticosteroid use. Otolaryngol Head Neck Surg. 2011;144(1):10-15. 16. Svider PF, Keeley BR, Zumba O, Mauro AC, Setzen M, Eloy JA. From the operating room to the courtroom: a comprehensive characterization of litigation related to facial plastic surgery procedures. Laryngoscope. 2013;123(8):1849-1853. 17. Lydiatt DD, Sewell RK. Medical malpractice and sinonasal disease. Otolaryngol Head Neck Surg. 2008;139(5):677681. 18. Svider PF, Sunaryo PL, Keeley BR, Kovalerchik O, Mauro AC, Eloy JA. Characterizing liability for cranial nerve injuries: a detailed analysis of 209 malpractice trials. Laryngoscope. 2013;123(5):1156-1162. 19. Svider PF, Pashkova AA, Husain Q, et al. Determination of legal responsibility in iatrogenic tracheal and laryngeal stenosis. Laryngoscope. 2013;123(7):1754-1758. 20. Svider PF, Kovalerchik O, Mauro AC, Baredes S, Eloy JA. Legal liability in iatrogenic orbital injury. The Laryngoscope. 2013;123(9):2099-2103. 21. Mavroforou A, Giannoukas A, Michalodimitrakis E. Medical litigation in cosmetic plastic surgery. Med Law. 2004;23(3):479-488. 22. Moffett P, Moore G. The standard of care: legal history and definitions: the bad and good news. West J Emerg Med. 2011;12(1):109-112. 23. American Society for Aesthetic Plastic Surgery. Cosmetic Surgery National Databank Statistics 2012. http://www .surgery.org/sites/default/files/ASAPS-2012-Stats.pdf. Accessed April 20, 2013. 24. Solvi AS, Foss K, von Soest T, Roald HE, Skolleborg KC, Holte A. Motivational factors and psychological processes in cosmetic breast augmentation surgery. J Plast Reconstr Aesthetic Surg. 2010;63(4):673-680. 25. Crockett RJ, Pruzinsky T, Persing JA. The influence of plastic surgery “reality TV” on cosmetic surgery patient expectations and decision making. Plast Reconstr Surg. 2007;120(1):316-324. 26. Gorney M. Avoiding litigation in breast modification. Plast Reconstr Surg. 2011;127(5):2113-2115. 27. Gorney M. Preventing litigation in breast augmentation. Clin Plast Surg. 2001;28(3):607-615. 28. Hoffman GW, Ballesteros RF. Reduction mammaplasty. South Med J. 1971;64(9):1106-1111. 29. Bismark M, Dauer EA. Motivations for medico-legal action: lessons from New Zealand. J Legal Med. 2006;27(1):55-70. 30. Bismark MM, Gogos AJ, Clark RB, Gruen RL, Gawa nde AA, Studdert DM. Legal disputes over duties to disclose treatment risks to patients: a review of negligence claims and complaints in Australia. PLoS Med. 2012;9(8):e1001283. 31. Gogos AJ, Clark RB, Bismark MM, Gruen RL, Studdert DM. When informed consent goes poorly: a descriptive study of medical negligence claims and patient complaints. Med J Aust. 2011;195(6):340-344.
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32. Eloy JA, Svider PF, Patel D, Setzen M, Baredes S. Comparison of plaintiff and defendant expert witness qualification in malpractice litigation in otolaryngology. Otolaryngol Head Neck Surg. 2013;148(5):764-769. 33. Kovalerchik O, Mady LJ, Svider PF, et al. Physician accountability in iatrogenic cerebrospinal fluid leak litigation. Int Forum Allergy Rhinol. 2013;3(9):722-725. 34. Svider PF, Husain Q, Kovalerchik O, et al. Determining legal responsibility in otolaryngology: a review of 44 trials since 2008. Am J Otolaryngol. 2013;34(6):699-705. 35. Reader rankings 2012. New York Law Journal. http:// www.nylj.com/nylawyer/adgifs/specials/091012nyljread errankings2012.pdf. Accessed May 15, 2013.
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36. 2013 Best of The National Law Journal. http://pdfserver .amlaw.com/nlj/Best_of_NLJ_2013_web.pdf. Accessed May 15, 2013. 37. Abadin SS, Kaplan EL, Angelos P. Malpractice litigation after thyroid surgery: the role of recurrent laryngeal nerve injuries, 1989-2009. Surgery. 2010;148(4):718-723. 38. Kessler DP. Evaluating the medical malpractice system and options for reform. J Econ Perspect. 2011;25(2):93-110.
A Look Inside the Courtroom: An Analysis of 292 Cosmetic Breast Surgery Medical Malpractice Cases
Aesthetic Surgery Journal 2014, Vol 34(1) 79–86 © 2013 The American Society for Aesthetic Plastic Surgery, Inc. Reprints and permission: http://www.sagepub.com/ journalsPermissions.nav DOI: 10.1177/1090820X13515702 www.aestheticsurgeryjournal.com
Angie M. Paik, BA; Leila J. Mady, PhD; Aditya Sood, MD, MBA; Jean Anderson Eloy, MD, FACS; and Edward S. Lee, MD
Abstract Background: Malpractice claims affect the cost and quality of health care. Objective: The authors examine litigation in cosmetic breast surgery and identify factors influencing malpractice litigation outcomes. Methods: The Westlaw database was searched for jury verdict and settlement reports related to medical malpractice and cosmetic breast surgeries. Cases included for analysis were examined for year, geographic location, patient demographics, procedure performed, alleged injury, causes of action, verdict, and indemnity payments. Results: Of 292 cases, the most common injury sustained was disfigurement (53.1%). Negligent misrepresentation had a 98% greater chance of resolution in favor of the plaintiff (reative risk [RR], 1.98; 95% confidence interval [CI], 1.41-2.79), and fraud had a 92% greater chance of disposition in favor of the plaintiff (RR, 1.92; 95% CI, 1.32-2.80). The most common causes of action cited were negligence (88.7%) and lack of informed consent (43.8%). One hundred sixty-nine (58.3%) cases resulted in favor of the defendant and 121 (41.7%) cases were disposed in favor of the plaintiff; 97 (33.4%) cases resulted in damages awarded and 24 (8.3%) cases resulted in settlement. No significant difference was found between the medians of indemnity payments awarded to plaintiffs ($245 000) and settlements ($300 000). Conclusions: Based on this study, negligent or intentional misrepresentation strongly favors plaintiffs in either awarded damages or settlements in cases of cosmetic breast surgery litigation. This study emphasizes that transparency and adequate communication are at the crux of the physician-patient relationship and are tools by which plastic surgeons may reduce the frequency of litigations, thereby containing health care costs at a minimum. Keywords cosmetic breast, medical malpractice, breast augmentation, breast reduction, breast implant, mastopexy Accepted for publication May 20, 2013.
There is an abundance of data suggesting that medical error rates exceed error rates of other industries, such as the airline and finance sectors, in which comparable error rates to those found in health care would be unacceptable.1,2 With adverse events secondary to medical errors costing an estimated tens of billions in unnecessary expenditures and leading to an estimated 98 000 avoidable hospital deaths per year, this matter cannot be taken lightly.3 In parallel to increasing medical errors, there is a rise in the cost of medical malpractice, collectively accounting for nearly $10 billion in costs for health care providers annually.4 The burden of these costs inevitably falls on
From the Department of Surgery, Division of Plastic Surgery, Department of Otolaryngology - Head and Neck Surgery, Department of Neurological Surgery, Rutgers New Jersey Medical School, Newark, New Jersey.* *When this manuscript was written, the institution was known as the University of Medicine and Dentistry of New Jersey. As of July 1, 2013, the institution has changed to Rutgers Biomedical and Health Sciences. Corresponding Author: Ms Angie M. Paik, Rutgers New Jersey Medical School, 140 Bergen St, Suite E1620, Newark, NJ 07103, USA. E-mail: [email protected]
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both providers and consumers of health care, as physicians invest valuable time, money, and energy defending claims rather than delivering quality care and health care consumers continue to pay higher insurance premiums.5 Data suggest that, when compared with other specialties, plastic surgery faces one of the highest proportions (13%) of physicians facing a malpractice claim.6,7 Literature on the specificity of claims against plastic surgeons is sparse to date, but a 2010 review published in the Journal of Plastic, Reconstructive, and Aesthetic Surgery found that a majority of litigation cases against plastic surgeons has been due to lack of informed consent, poor cosmetic results, scarring, or lack of expertise in performing a given procedure.7 Multiple studies have shown that breast-related surgeries account for 37% of overall claims against plastic surgeons.8,9 The impact of malpractice suits inevitably affects the cost and quality of health care, and cosmetic breast surgery is no exception to such litigation. Few studies have been done in the United States with regard to understanding the phenomenon and implications of malpractice suits in cosmetic breast surgery. Although prior reports have shed light on malpractice litigation trends in cosmetic breast surgery,7,8,10-12 none has provided a comprehensive analysis of this phenomenon in the United States. The objectives of this study were to examine litigation in cosmetic breast surgery and identify factors influencing malpractice litigation outcomes. After identifying and understanding the factors affecting litigation and medical errors, practicing plastic surgeons may successfully develop and implement preventative strategies to minimize legal action and improve patient care.
Methods The Westlaw legal database (Thomson Reuters, New York, New York) is a primary source used by legal professionals to gather information regarding legal cases, jury verdicts and summaries, and trial court documents. The database is available by subscription to the public and contains no protected patient information, thereby requiring no institutional review board (IRB) review. Westlaw accumulates cases from all publicly available state and federal court records, which are obtained from numerous vendors that differ by jurisdiction. The comprehensiveness and variability of case information compiled within the database is influenced by the variety of commercial vendors. Although a proportion of jury verdict and settlement reports is obtained through voluntary submission by attorneys, most jurisdictions attain case information through nonvoluntary submission by legal professionals.13-15 Records obtained via the latter frequently classify legal parties involved as “anonymous” or “confidential” to protect identifying information. Although litigation settled out of court may prohibit the generation of publicly available records for such cases, Westlaw contains ample court records and case details and has been widely used to ascertain case law related to claims of medical malpractice.13-20
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Figure 1. Search methodology for cosmetic breast surgery malpractice jury verdicts using the Westlaw database (Thomson Reuters, New York, New York). Search conducted in April 2013.
Two authors (AMP, LJM) searched the database for jury verdict and settlement reports related to medical malpractice and cosmetic breast surgeries. Queries were not limited by state or date. Specific search terms included mammoplasty, reduction, augmentation, mastopexy, enhancement, implant, breast surgery, and medical malpractice. The search yielded 527 results that were independently reviewed for applicability and completeness. Of the 527 initial results, 235 cases were excluded: duplicate cases (132), non–breast surgeries (72), breast reconstructive surgeries (28), allegations involving a nonsurgical physician or allied health professional (2), and cases involving a cross-complaint (1). The remaining 292 jury verdict and settlement reports were included for analysis and examined for year of action, geographic location of action, patient demographics, procedure performed, allegations of injury, cause of litigation, verdict, and indemnity payments. All data were collected in April 2013. Nonparametric statistical analysis was conducted using the Fisher exact test for comparison of categorical data, and the MannWhitney U test was used for evaluation of continuous variables (InStat; GraphPad Software, Inc, La Jolla, California). Statistical significance was set at P < .05.
Results Two hundred ninety-two cases were examined that matched the search criteria and involved cosmetic breast surgery (Figure 1). Plaintiff sex was overwhelmingly female (98.6%), although 1.4% of complaints were found to arise from men. Median patient age was 36 years (range, 14-72 years). In contrast, 90.1% of physician defendants were men. The dates of the jury verdicts or settlements ranged from years 1985 to 2012 (median, 2002),
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Figure 3. Cosmetic breast procedures resulting in litigation. Four cases categorized as other included breast lipectomy (n = 1), breast liposuction (n = 1), pectoral implants (n = 1), and unspecified (n = 1).
Figure 2. (A) Frequency of cases by the year of jury verdict or settlement and (B) geographic distribution by state. The District of Columbia included 1 case, not shown on map. Trend line in panel A represents moving average. Other cases included breast lipectomy (n = 1), breast liposuction (n = 1), pectoral implants (n = 1), and unspecified (n = 1).
with the greatest number of litigations occurring in 2006 (n = 31; Figure 2A). Over the time period observed, there was an overall trend of increasing malpractice-related cosmetic breast surgery litigation. Court records spanned 37 states, in addition to 1 case from the District of Columbia. The geographic distribution of cases by state is represented in Figure 2B. California experienced the greatest number of cases (n = 63), followed by New York (n = 40) and Florida (n = 35). The most common procedures resulting in litigation were augmentation (n = 115, 39.4%) and reduction (n = 110, 37.7%). Notably, a lower incidence of litigation was found in augmentation or reduction procedures accompanied by mastopexy (n = 20, 6.8% and n = 3, 1.0%, respectively). The frequency of litigation by procedure type is illustrated in Figure 3. Alleged injuries cited for litigation were varied and are shown in Figure 4. The most common injury sustained as a result of cosmetic breast surgery was disfigurement (n =
Figure 4. Alleged injuries sustained as a result of cosmetic breast procedures. The sum is greater than 100% as multiple injuries were sustained in some cases. Injuries classified as “other” included unspecified (n = 3), injuries from other surgeries (n = 2), vancomycin toxicity (n = 1), pulmonary embolism (n = 1), damaged prostheses (n = 1), malignancy discovery intraoperatively with failure to stop the procedure (n = 1), and anesthetic-induced hepatitis (n = 1).
155, 53.1%). The second most common injury cited was necessitation of a revision procedure (n = 124, 42.5%), followed next in frequency by scarring (n = 113, 38.7%). Iatrogenic injury (n = 19, 6.5%) was among the least common allegations named in malpractice related to cosmetic breast procedures. Iatrogenic injury included electrocautery or chemical burns, contusions, pneumothorax or pleural interruptions, torn pectoralis muscles, and 1 case of corticosteroid-induced Cushing syndrome. Beyond cutaneous or iatrogenic injuries, psychological injuries, including emotional distress or pain, were alleged in 5.8% (n = 17) of cases. Death (n = 8, 2.7%) was the least common reason for litigation. Three deaths were related to excessive infiltration of local anesthetic, 3 were associated with failure to diagnose lung or heart disease prior to surgery, and 2 deaths resulted secondary to infection (ie, aspiration pneumonia or septic shock).
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Figure 5. Causes of action in medical malpractice claims. The sum exceeds 100% as multiple causes of action were cited in some cases. Causes of action categorized as “other” included breach of warranty (n = 2), failure to train employees (n = 1), and development of psychiatric illness secondary to the procedure (n = 1).
The causes of action cited for litigation in cosmetic breast surgery are represented in Figure 5. Negligence, either through lack of appropriate knowledge or skill or departure from the standard of care, was explicitly alleged in 88.7% (n = 259) of cases, constituting the most common legal action for medical malpractice. The second most common cause of action was lack of informed consent, cited in 43.8% (n = 128) of cases. Patients may allege lack of informed consent when physicians fail to comprehensively describe the risks associated with cosmetic breast procedures and to offer alternative therapies for a selected procedure prior to undergoing surgery. Failure to diagnose and/or treat an injury related to the cosmetic breast procedure (n = 37, 12.7%) was the third most common cause of action, followed by loss of consortium (n = 22, 7.5%), in which the cause of action is initiated by a family member, and then negligent misrepresentation (n = 10, 3.4%), in which the physician distorts his or her credentials and/or effectiveness and safety of the recommended procedure. Of the 292 cases examined, 290 (99.3%) contained information concerning overall case verdicts. One hundred sixty-nine (58.3%) cases resulted in favor of the defendant, and 121 (41.7%) cases were disposed in favor of the plaintiff, of which 97 (33.4%) cases resulted in damages awarded and 24 (8.3%) cases resulted in settlements (Figure 6A). Monetary damages awarded to plaintiffs ranged between $4500 and $10 000 000, with mean and median awards of $885 306 and $245 000, respectively. Settlements ranged between $5716 and $1 500 000, with mean and median settlements of $481 055 and $300 000, respectively. No statistically significant difference was found between the medians of indemnity payments awarded to plaintiffs and settlements (Mann-Whitney test, P = .64) (Figure 6B). Median ages, however, between cases of a plaintiff award or settlements differed significantly (Mann-Whitney test, P = .02), with median ages of 36 and 30 years, respectively (Figure 6C). For all alleged injuries, no significant difference was found between type of injury and case outcome (Fisher
Figure 6. (A) Disposition of cases. (B) Indemnity payments for plaintiff decisions comparing damages awarded and settlements, plotted on a logarithmic scale. Damages awarded ranged from $4500 to $10 000 000; dashed line, median payment $245 000. Settlements ranged from $5716 to $1 500 000; dashed line, median payment $300 000. (C) Plaintiff ages by indemnity payments comparing damages awarded and settlements. Ages of plaintiffs awarded damages ranged from 22 to 63 years; dashed line, median age 36 years. Ages of plaintiffs who received settlements ranged from 20 to 60 years; dashed line, median age 30 years.
exact test, P > .05). Of the causes of action cited for litigation, negligent misrepresentation and fraud were significantly more likely to result in dispositions, either through damages awarded or settlements, in favor of plaintiffs (Fisher exact test, P = .02 and P = .04, respectively). Cases in which negligent misrepresentation was cited had a 98% greater chance of resolution in favor of the plaintiff
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(relative risk [RR], 1.98; 95% confidence interval [CI], 1.41-2.79). Cases in which fraud was cited had a 92% greater chance of disposition in favor of the plaintiff (RR, 1.98; 95% CI, 1.32-2.80). Conversely, citing lack of informed consent was significantly less likely to result in damages awarded or settlements (Fisher exact test, P = .004). Those cases citing lack of informed consent had a 35% less chance of an outcome favoring the plaintiff (RR, 0.65; 95% CI, 0.48-0.87).
Discussion In the courtroom, a physician defendant is judged based on medical standards of what the average physician would do in everyday practice. A physician is deemed “negligent” when he or she deviates from this standard of care. To be awarded compensation for medical negligence, the plaintiff must establish 4 factors: (1) the physician owed a professional duty to the patient, (2) the physician breached this duty by deviating from the standard of care, (3) the patient was harmed through infliction of personal injury or wrongful death, and (4) the harm inflicted was directly caused by the physician’s breach of duty.21,22 Our study describes cosmetic breast litigation cases for which trial or settlement dates ranged from 1985 to 2012. In looking at the trend across the years, we noted an overall increase in incidence up until 2006, when there was a peak of 30 reported cases. After this peak, the yearly incidence appeared to trend down, but this only reflects those malpractice claims that progressed to a trial and does not necessarily represent a downward trend in overall litigation claims. California, New York, and Florida experienced the greatest number of cosmetic breast litigation cases. National statistics from 2012 reported that the Middle Atlantic (including New York), the Pacific (including California), and the South Atlantic (including Florida) regions of the United States accounted for the most cosmetic procedures.23 These results are most likely a reflection of these national statistics, although one should consider the possibility that these states may have a more litigious culture. The most commonly litigated injury was disfigurement. Scarring, asymmetry, and dissatisfaction with size were other common injuries sustained related to a complaint in aesthetic result. In a study that examined psychological processes and motivational factors, Solvi et al24 concluded that femininity was the basic motivational drive for women to undergo breast augmentation. The generating factors behind this drive were personal experience and thoughts related to the size and shape of their breasts (ie, appearance dissatisfaction, ideal figure, self-esteem, comments, clothes, and sexuality). It would stand to reason that if what motivates a patient to undergo cosmetic breast surgery is her own notion of a personalized ideal, anything that falls short of this ideal will illicit dissatisfaction. Solvi et al24 also determined that interaction with former cosmetic breast patients through the media or personal relationships played a significant role in eliciting a
desire to undergo breast augmentation. With the popularity of reality television programs focusing on makeovers and cosmetic plastic surgery procedures (eg, The Swan, Extreme Makeover), patients are using sensationalized media milieus as their aesthetic standards and as a means of cosmetic procedure self-education. In a study reviewing plastic surgery reality television viewership, patients who were deemed “high-intensity viewers” felt that they were more knowledgeable about the risks of surgery.25 Television programs misconstrue patient evaluation and follow-up care via editing mechanisms such that viewers may not appreciate a comprehensive assessment of the benefits and risks of a procedure. The second most common action cited was lack of informed consent. Cases reporting deficits in informed consent were usually founded on claims that while the patient signed a consent form, the actual risks of the procedure were never discussed with them in depth. The importance of proper informed consent has been previously stressed as a means of decreasing litigation and fostering a better physician-patient relationship.21,26-31 Failure to fully educate the patient on the procedure may prompt the patient to declare negligence or even assault. Consent may be obtained at least 24 hours before a procedure, during which time the surgeon explains the procedure and all the risks associated with cosmetic surgery.21 Serial photographs or videos of previous patients are a helpful supplement to the discussion as it allows patients to visualize the outcome that may help their decision making. Some authors even suggest that this counseling process be done early on during patient evaluation so that the risks can be further discussed with the patient’s family.26,28,30 In addition to what is cited in the literature, it may be helpful to schedule 2 preoperative visits during which plenty of time is devoted to discussion of the risks of the procedure. We advocate using procedure-specific consent forms (such as those available from the American Society for Aesthetic Plastic Surgery) that review the risks most highly associated with the surgery to be performed. For breast augmentation, it may also be helpful to provide information booklets directly from the implant manufacturer to educate patients on the prosthesis they are receiving. Monetary damages awarded fell into a large range, but there was no significant difference found between the median of indemnity payments awarded to plaintiffs or to settlements. We were able to appreciate a statistically significant difference in the plaintiff age where those cases with a plaintiff award had a higher median age (36 years) than those resulting in settlement (30 years). While this difference in median age is not dramatic, it suggests that in cases with a plaintiff-favored outcome, the jury is more inclined to award an older plaintiff, whereas cases are more inclined to result in a settlement with a younger plaintiff. The influence of age in cases that settle may be a reflection of the financial burden of the plaintiff. Younger plaintiffs are more likely to have financial hardships and may be more willing to accept a settlement that guarantees compensation. It has been
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shown in other studies that a jury is more sympathetic toward a younger plaintiff and is more likely to offer a higher amount awarded. It is possible that plastic surgeons are aware of this age bias and prefer to settle in cases where they feel there is an increased chance of judgment in favor of the plaintiff.18,19 Our study revealed a significant relationship between certain causes of action and case outcome. Those that cited either negligent misrepresentation or fraud were significantly more likely to result in damages awarded or settlements in favor of plaintiffs (98% and 92% more likely, respectively). Negligent misrepresentation occurred when the plastic surgeon portrayed a false or skewed representation about the procedure or credentials but did not explicitly or intentionally communicate untruths regarding either. Misrepresentation that is intentional, with purpose to deceive a patient, is characterized as fraud. Plaintiffs can claim that fraud has been committed if the defending physician deliberately altered or falsified medical records, including destructing, suppressing, or tampering with material medical information. Our study shows that misrepresentation, whether negligent or fraudulent, is an allegation that must be avoided. All physicians should be forthright about their experience with the procedure as well as their credentials and training. A cosmetic practice is a business, and while it is tempting to package oneself as an “expert” to boost confidence in clientele, this claim may lead to legal repercussions. Those who cited a lack of informed consent as a cause of action were significantly less likely to receive a plaintifffavored outcome (35% less likely). This finding reveals just how critical the informed consent process is in protecting physicians. Even though the plaintiff may allege that a proper verbal discussion of the risks and alternatives of a procedure was not conducted, the legal system may hold the plaintiff accountable once she or he commits a signature to a written document, particularly for nonemergent, elective surgical procedures. While it is reassuring to know that the informed consent process is an effective means of protection, the value of open communication and discussion between patient and physician cannot be stressed enough. This study is the first to use the Westlaw database in describing US malpractice litigations in cosmetic breast surgery. Westlaw is a comprehensive legal research database that is well known among lawyers and legal professionals. It has been successfully used in medicolegal studies in other specialties to describe the factors and outcomes of various injuries and procedures.16,18-20,32-34 The scope of litigation reports included in this analysis spans 38 states and dates back to the 1980s, providing a perspective on trends in medical malpractice over time. The decision to use Westlaw over other online legal databases (ie, LexisNexis, Bloomberg Law, VerdictSearch, etc) was based on its reputation, quality of case entries, and ease of navigation. Westlaw has won numerous awards, and in the 2012 New York Law Journal Reader Rankings and the 2013 Best of The National Law Journal,
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Westlaw won in the categories of Online Research Provider and Online Legal Research Vendor, respectively, along with LexisNexis.35,36 Our institution has previously compared Westlaw and LexisNexis,19 and in our experience, Westlaw was more user-friendly to the layperson with comparable content and search results. Other studies using LexisNexis confirm a similar level of data extraction capability.37 There were several limitations inherent in the Westlawbased methodology. Most Westlaw cases are obtained from federal and state court records, but some are voluntarily submitted by attorneys.18 This may create gaps in the database of those cases that were not submitted based on the attorney’s discretion. Another limitation was the heterogeneity in content of the cases in which some cases were not as detailed as others. Westlaw may not capture claims that agreed to settlements outside of the courtroom but did not progress far enough for inclusion in publicly available federal and state court records—a practice that may be prevalent in cosmetic plastic surgery. Last, when determining the verdict or amount awarded in a case, the jury may take other factors into consideration that are not readily discernable in Westlaw. The cost of malpractice insurance varies by specialty to reflect the expected frequency of claims and awards that are paid. While the intent of this cost is to motivate physicians to avoid accidental harm, physicians are described as practicing “defensive medicine” in response, which has an important influence on overall health care costs.38 Defensive medicine includes either supplying excessive and often detrimental care that is not cost-effective or declining to supply care altogether. Our study aimed to identify the reasons and associated factors of litigation in cosmetic breast surgery. We believe that our findings, including the necessity for transparent communication with patients, should be taken into consideration when building a cosmetic practice.
Conclusions Our study reviewed 292 medical malpractice cases related to cosmetic breast surgery that proceeded to trial. We identified 14 injuries commonly alleged in cosmetic breast surgery litigation. Each of these, where appropriate, must be clearly enumerated on consent forms as well as thoroughly discussed in person not only to provide complete patient care but also to protect physicians from the medicolegal repercussions of malpractice, both financially and vis-à-vis one’s reputation. Our study also elucidated specific allegations that were more likely to result in indemnity payments to plaintiffs, providing insight into attributes of the physician-patient relationship valued by our legal system. Our analysis revealed that any form of misrepresentation, whether negligent or intentional, strongly favors the plaintiff in either awarded damages or settlements. This study emphasizes that transparency and adequate communication are at the crux of the physician-patient relationship and are tools by which plastic surgeons may
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reduce the frequency of litigation, thereby containing health care costs at a minimum.
Disclosures The authors declared no potential conflicts of interest with respect to the research, authorship, and publication of this article.
Funding The authors received no financial support for the research, authorship, and publication of this article.
References 1. Quality Interagency Coordination Task Force (QuIC). Understanding medical errors. In: Doing What Counts for Patient Safety: Federal Actions to Reduce Medical Errors and Their Impact. Washington, DC: QuIC; 2000. http:// www.quic.gov/report/mederr4.htm. Accessed May 3, 2012. 2. Leape LL. Institute of Medicine medical error figures are not exaggerated. JAMA. 2000;284(1):95-97. 3. Stefl ME. To err is human: building a safer health system in 1999. Frontiers Health Serv Manage. 2001;18(1):1-2. 4. United States General Accounting Office. Medical liability: impact on hospital and physician costs extends beyond insurance. http://www.gao.gov/assets/230/221826.pdf. Accessed April 20, 2013. 5. Seabury SA, Chandra A, Lakdawalla DN, Jena AB. On average, physicians spend nearly 11 percent of their 40-year careers with an open, unresolved malpractice claim. Health Aff (Millwood). 2013;32(1):111-119. 6. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629-636. 7. Mehta S, Farhadi J, Atrey A. A review of litigation in plastic surgery in England: lessons learned. J Plast Reconstr Aesthetic Surg. 2010;63(10):1747-1748. 8. Richards E, Vijh R. Analysis of malpractice claims in breast care for poor cosmetic outcome. Breast. 2011;20(3):225228. 9. Dyer C. Clinical negligence claims against plastic surgeons rise “significantly.” BMJ. 2012;344:e298. 10. Ifeacho SN, Pothier DD. A comparative analysis of the litigation rate against the NHS following rhinoplasty by otorhinolaryngologists and plastic surgeons. Clin Otolaryngol. 2009;34(2):177-178. 11. da Silva DB, Nahas FX, Bussolaro RA, de Brito MJ, Ferreira LM. The increasing growth of plastic surgery lawsuits in Brazil. Aesthetic Plast Surg. 2010;34(4):541-542. 12. Lyu SY, Liao CK, Chang KP, Tsai ST, Lee MB, Tsai FC. Analysis of medical litigation among patients with medical disputes in cosmetic surgery in Taiwan. Aesthetic Plast Surg. 2011;35(5):764-772. 13. Reilly BK, Horn GM, Sewell RK. Hearing loss resulting in malpractice litigation: what physicians need to know. Laryngoscope. 2013;123(1):112-117.
14. Lydiatt DD. Medical malpractice and facial nerve paralysis. Arch Otolaryngol Head Neck Surg. 2003;129(1):50-53. 15. Nash JJ, Nash AG, Leach ME, Poetker DM. Medical malpractice and corticosteroid use. Otolaryngol Head Neck Surg. 2011;144(1):10-15. 16. Svider PF, Keeley BR, Zumba O, Mauro AC, Setzen M, Eloy JA. From the operating room to the courtroom: a comprehensive characterization of litigation related to facial plastic surgery procedures. Laryngoscope. 2013;123(8):1849-1853. 17. Lydiatt DD, Sewell RK. Medical malpractice and sinonasal disease. Otolaryngol Head Neck Surg. 2008;139(5):677681. 18. Svider PF, Sunaryo PL, Keeley BR, Kovalerchik O, Mauro AC, Eloy JA. Characterizing liability for cranial nerve injuries: a detailed analysis of 209 malpractice trials. Laryngoscope. 2013;123(5):1156-1162. 19. Svider PF, Pashkova AA, Husain Q, et al. Determination of legal responsibility in iatrogenic tracheal and laryngeal stenosis. Laryngoscope. 2013;123(7):1754-1758. 20. Svider PF, Kovalerchik O, Mauro AC, Baredes S, Eloy JA. Legal liability in iatrogenic orbital injury. The Laryngoscope. 2013;123(9):2099-2103. 21. Mavroforou A, Giannoukas A, Michalodimitrakis E. Medical litigation in cosmetic plastic surgery. Med Law. 2004;23(3):479-488. 22. Moffett P, Moore G. The standard of care: legal history and definitions: the bad and good news. West J Emerg Med. 2011;12(1):109-112. 23. American Society for Aesthetic Plastic Surgery. Cosmetic Surgery National Databank Statistics 2012. http://www .surgery.org/sites/default/files/ASAPS-2012-Stats.pdf. Accessed April 20, 2013. 24. Solvi AS, Foss K, von Soest T, Roald HE, Skolleborg KC, Holte A. Motivational factors and psychological processes in cosmetic breast augmentation surgery. J Plast Reconstr Aesthetic Surg. 2010;63(4):673-680. 25. Crockett RJ, Pruzinsky T, Persing JA. The influence of plastic surgery “reality TV” on cosmetic surgery patient expectations and decision making. Plast Reconstr Surg. 2007;120(1):316-324. 26. Gorney M. Avoiding litigation in breast modification. Plast Reconstr Surg. 2011;127(5):2113-2115. 27. Gorney M. Preventing litigation in breast augmentation. Clin Plast Surg. 2001;28(3):607-615. 28. Hoffman GW, Ballesteros RF. Reduction mammaplasty. South Med J. 1971;64(9):1106-1111. 29. Bismark M, Dauer EA. Motivations for medico-legal action: lessons from New Zealand. J Legal Med. 2006;27(1):55-70. 30. Bismark MM, Gogos AJ, Clark RB, Gruen RL, Gawa nde AA, Studdert DM. Legal disputes over duties to disclose treatment risks to patients: a review of negligence claims and complaints in Australia. PLoS Med. 2012;9(8):e1001283. 31. Gogos AJ, Clark RB, Bismark MM, Gruen RL, Studdert DM. When informed consent goes poorly: a descriptive study of medical negligence claims and patient complaints. Med J Aust. 2011;195(6):340-344.
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32. Eloy JA, Svider PF, Patel D, Setzen M, Baredes S. Comparison of plaintiff and defendant expert witness qualification in malpractice litigation in otolaryngology. Otolaryngol Head Neck Surg. 2013;148(5):764-769. 33. Kovalerchik O, Mady LJ, Svider PF, et al. Physician accountability in iatrogenic cerebrospinal fluid leak litigation. Int Forum Allergy Rhinol. 2013;3(9):722-725. 34. Svider PF, Husain Q, Kovalerchik O, et al. Determining legal responsibility in otolaryngology: a review of 44 trials since 2008. Am J Otolaryngol. 2013;34(6):699-705. 35. Reader rankings 2012. New York Law Journal. http:// www.nylj.com/nylawyer/adgifs/specials/091012nyljread errankings2012.pdf. Accessed May 15, 2013.
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36. 2013 Best of The National Law Journal. http://pdfserver .amlaw.com/nlj/Best_of_NLJ_2013_web.pdf. Accessed May 15, 2013. 37. Abadin SS, Kaplan EL, Angelos P. Malpractice litigation after thyroid surgery: the role of recurrent laryngeal nerve injuries, 1989-2009. Surgery. 2010;148(4):718-723. 38. Kessler DP. Evaluating the medical malpractice system and options for reform. J Econ Perspect. 2011;25(2):93-110.
