CASE ONE:
Lack of Training and Expertise and Failure to Obtain Informed Consent
Physicians intending to add cosmetic procedures to their practice should carefully consider whether they have acquired an appropriate level of education, training, and expertise to treat patients.
A 2023 study published in Plastic and Reconstructive Surgery—Global Open reviewed publicly available litigation records for malpractice actions involving minimally invasive cosmetic procedures. The review included cases from 1979 to 2022 that went to verdict and excluded those settled prior to trial. Over half of the cases that went to trial involved healthcare practitioners practicing out of scope. In these instances, procedures were performed by practitioners without an American Board of Medical Specialties accreditation in plastic surgery. Nearly 47 percent of these cases were performed in a private practice setting. The most common allegations were permanent injury or disfigurement, failure to obtain informed consent, and postoperative complications. Plastic surgeons provided expert testimony for the plaintiff more than 40 percent of the time, regardless of whether the defendant practitioners had the qualifications of a plastic surgeon.2
Defendant physicians who practice outside of their specialty tend to be judged more harshly by colleagues—both by patients’ subsequent treating physicians and physician consultants who provide expert reviews in malpractice litigation. Physicians practicing outside of their specialty are held to the standard of care of a specialist in the new area. Consequently, physicians who choose to practice outside their areas of specialty must be particularly careful to obtain adequate training, develop sufficient expertise, choose patients wisely, and refer when necessary.
In the following case, the physician believed sclerotherapy required only minimal experience and training. She failed to realize the patient needed the procedure in an area of the body that required additional expertise.
Multiple issues complicated the defense of this case. Although the patient suffered from recognized complications of sclerotherapy, there was no documentation to prove informed consent. The gynecologist stated that the possibility of extravasation, ulceration, and necrosis would have routinely been discussed; however, without documentation, it was the physician’s word against the patient’s—a credibility contest.
The patient also alleged that the gynecologist should have disclosed that their training consisted of a two-day course and that they had performed the procedure on only five prior occasions. Additionally, the patient claimed they would not have undergone the procedure if they had known about the gynecologist’s qualifications. Although the gynecologist felt confident in their abilities, experts who reviewed the case noted that the injured area required a heightened level of expertise. Sclerotherapy on the shin can be complicated because the capillaries are very small and pass over bone; therefore, the solution must not be too concentrated, and the pressure must be gentle to avoid extravasation. Experts believed the large area affected could be used as evidence of poor technique and inadequate qualifications.
The American Medical Association’s Opinion 2.2.1, “Informed Consent,” asserts that physicians owe their patients information so patients “can make well-considered decisions about care,” and “successful communication … supports shared decision making.”3 This Opinion does not specifically address physician disclosure of qualifications, training, or expertise regarding recommended treatment or procedures. However, certain state statutes or case law may find a healthcare practitioner’s professional experience and competence relevant to a patient’s decision to proceed with the recommended treatment performed by that practitioner.4,5
The experts also questioned the gynecologist’s wound care treatment. Although the care was acceptable for healing and infection control, the gynecologist did not achieve the most cosmetically pleasing result possible. Experts believed that a plastic or cosmetic surgeon would have approached wound care from a cosmetic perspective, and the patient would have had a better outcome. They also believed the gynecologist should have referred the patient to a plastic surgeon sooner.
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NECESSARY TRAINING FOR COSMETIC PROCEDURES
INFORMED CONSENT FOR COSMETIC PROCEDURES The informed consent process should not be viewed as a burden, nor should it be delegated to staff other than the treating physician. It provides busy clinicians with a structured opportunity to build rapport, manage expectations, and give patients strategies for achieving the best possible outcome. Consider the following recommendations when preparing a patient for a cosmetic procedure:
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CASE TWO:
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Experts opined that the choice of treatment and dosage of triamcinolone was appropriate. However, there was concern about the lack of documentation of the allergist’s clinical rationale for ordering the injection in the deltoid. Also, despite their apprehension as to the physician’s verbal order to inject into the deltoid area, the LVN did not share their concern, ask any questions, or reverify the location of injection.
The package insert warned that unless a deep intramuscular injection is given, local atrophy is likely to occur. It stated that, because of a significantly higher incidence of atrophy when the medication is injected into the deltoid area, this injection site should be avoided in favor of the gluteal area. As the subsequent treating plastic surgeon documented in the patient chart, and experts agreed, the steroid likely went into the tissue subcutaneously instead of intramuscularly, introducing the known risk of atrophy and necrosis. In this instance, the medical record was silent about why the deltoid injection site was selected—and why the allergist felt comfortable with this decision throughout the case.
The medical record indicated that “risks of injection were discussed with the patient,” but there was no accompanying written consent form and no specific mention of the actual risks, benefits, or alternatives considered. The patient was an enthusiastic bodybuilder, and their shoulder area’s deformed appearance exacerbated their previously diagnosed anxiety and depression. Later, the patient testified that they would not have agreed to the injection had they known the possibility of sunken skin, discoloration, and disfigurement complications.
Patients are entitled to be fully informed about the risks, benefits, and alternatives of recommended treatment, so they can make a voluntary and knowledgeable decision. In this case, the patient’s personal focus on bodybuilding would have led them to decline the injection in the proposed location if they had been advised of the risks of skin atrophy, discoloration, and distorted contouring.
The patient’s injuries were cosmetic and expected to improve at least somewhat, with a low likelihood of continued pain. Yet, the case was settled due to the difficulty of overcoming both the lack of informed consent and the absence of a documented clinical rationale for the injection site’s location, especially given the medication’s warnings.
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This patient’s clinical course presented distinct opportunities to both change treatment direction and record the justification for the ordered treatment plan.
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The “eggshell plaintiff rule,” also known as the “thin skull” rule, is a long-standing legal notion that applies to medical malpractice cases. According to Cornell Law School’s Legal Information Institute, the rule asserts that regardless of whether the wrongdoer is aware of the plaintiff’s preexisting fragility, liability for the wrongful act extends to all resulting harm, even when those injuries are more severe because of an underlying condition or unique susceptibility. Essentially, the defendant must “take the victim as they find them.”7
In the above case, the patient alleged the injury aggravated their preexisting anxiety and depression, causing additional mental distress and cost of care. As a bodybuilder, they claimed embarrassment and mental and emotional distress due to their disfigured deltoid area. This patient may be considered an eggshell plaintiff, as related to their heightened vulnerability to mental and emotional distress injuries and resulting damages.
ADDITIONAL RESOURCE
ProAssurance Guidelines: Informed Consent Process and Patients’ Rights
CASE THREE:
Patient Falls in an Ambulatory Setting
According to ECRI, a best practice patient safety organization, falls were the most frequently reported sentinel event to the Joint Commission between 2019 and 2023. Elders and children aged 14 and younger are more susceptible to fall injuries. One in four older adults falls each year, and children’s falls account for two million emergency room visits per year.8 Fall prevention in ambulatory settings presents a unique set of challenges. Patients have more autonomy and may arrive at each outpatient visit with new or different symptoms. They may also be more mobile than patients at inpatient or skilled nursing facilities, where fall risk assessments are typically conducted at or near the time of admission.
In 2024 Patient Safety published an article on the University of Pennsylvania Health System’s (UPHS) initiative to reduce ambulatory patient fall risk, piloting the effort in a neurology clinic with 6,500 monthly visits. By focusing on better patient screening, fall risk identification, and response, UPHS reduced its fall rate 22 percent over 18 months and by 37 percent over 30 months. The study also noted that falls with major injury have a greater net impact than direct patient harm and potentially delayed treatment for other conditions. The authors commented that falls also negatively affect staff morale and organizational reputation, while increasing medicolegal risk.9
Experts believed the key aspect of this case was the interaction between the tech and the patient during the MRI. While the tech’s version of events sounded reasonable and within guidelines, the medical chart did not have a single note—by the tech or any other MRI center staff member—about what occurred before the patient’s fall. The patient was sympathetic, and the missing contemporaneous documentation complicated the tech’s defense, which would hinge on whether a jury believed them or the patient. Although the tech’s testimony appeared to align with common sense, good practice, their substantial experience, and the machine’s setup, the medical record did not support it, undermining the tech’s credibility. Because such divergent narratives would make case resolution unpredictable at trial, the case was settled.
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The following risk reduction strategies address unforeseen or emergent situations that may occur during outpatient procedures:
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Centers for Disease Control and Prevention: Outpatient Care: STEADI—Older Adult Fall Prevention
Pennsylvania Patient Safety Authority: Radiology Falls Risk Assessment Tool
