Fordham Law

Don't let recession pressures up your exposure: under-promise and over-deliver

David J. Goldberg, M.D., J.D. in Modern Medicine, June 01, 2009

by Beth Kapes

Just three years ago, cosmetic interventions held a power that catapulted market demand for fillers, lasers and injections of botulinum toxin--a power that established aesthetic medicine as an endless frontier for fee-for-service business. Fast forward to today's economic recession: It's clear that even this business is affected, as many consumers are re-evaluating their cosmetic surgery plans and the money they will spend on them, in addition to applying higher scrutiny upon the services they purchase.

According to a recent poll by the American Society of Plastic Surgeons (ASPS), 27 percent of patient respondents were considering less expensive cosmetic options, compared with 20 percent six months ago. And while their planned expenditure may be less, the expectations of the consumer have not diminished; it's the promise of turning back the hands of time that continue to lure the consumer. But when cold hard cash is involved--especially during pressing financial times--some practitioners may unwittingly open themselves to risk by amping up their assurances of aesthetic outcomes.

Increased risk in a cosmetic surgeon's practice often starts with the marketing materials, states Theresa N. Essick, R.N., CPHRM, vice president, Clinical Risk Management for The Medical Protective Company, the nation's leading provider of malpractice insurance.

"A [cosmetic surgery] practice should always ask if their marketing materials are putting them at risk," says Ms. Essick. "What are you stating? Is this claim an overstatement? Do you have objective data that can back up what you're putting in your literature?"

Yet, a certain amount of "puffery" is acceptable in any kind of sales, and medical sales are no different, contends David J. Goldberg, M.D., J.D. It is also acceptable that some of the initial promotional materials are meant to be solely promotional and often involve the best pictures and best results, he explains. "But, these materials should never take the place of a face-to-face consultation," says Dr. Goldberg, director, Skin Laser & Surgery Specialists of New York / New Jersey, clinical professor of dermatology, and director, laser research at Mount Sinai School of Medicine. "Promotional materials are fine as long as there is a real consultation [to discuss the procedure]. When a physician has a coordinator who schedules the procedure without a consultation, then that can become a real problem."

Informed consent remains the big risk contender within cosmetic surgery practices. The need to educate the patient thoroughly prior to any procedure is paramount in avoiding legal hassles. This process should not be simply a piece of paper or packet sent home with a patient, but a thorough discussion of the procedure, its risks and the recovery process involved, explains Ms. Essick.

"The reason people sue is not just due to negligence," Dr. Goldberg says. "People ultimately sue due to poor communication, the need for retribution, the perceived ability to get money and then, finally, negligence. The fact remains that things do go wrong, and if something goes wrong, it's perfectly acceptable to admit this to the patient. Physicians are notorious for not speaking to a patient if there is a problem, but that only leaves suspicion in a patient's mind," notes Dr. Goldberg, who also serves as adjunct professor of law, Fordham Law School, New York. "Admitting that a complication has occurred does not mean that you, as the physician, did anything wrong."

Proactive risk assessment is gaining in importance within the business of cosmetic surgery. However, this topic is rarely dealt with at professional society meetings — despite the increasing need for it, states Dr. Goldberg.

Medical Protective offers its clients an online self-assessment tool for the office setting that gauges risk via 90 questions. After printing out their results, the practice can then contact a clinical risk consultant to review the survey outcomes, a process which can be completed over the phone or in person.

"The self-assessment tool always gives us a great baseline of what areas we need to focus on," says Ms. Essick. "In the claims we see, poor (or absent) communication drives so many med-mal cases. This could be written, verbal and non-verbal communications and includes doctor to patient, doctor to doctor, or doctor to staff. When looking at marketing, patient selection process, informed consent and managing patient expectations — all of these areas involve good communication to mitigate the risk associated with these areas."

Another potential avenue for streamlining and improving communication — and mitigating risk — throughout health care may be through the Obama Administration's recent commitment to electronic medical records (EMR) software. One Obama-stated objective: "to invest in proven strategies to reduce preventable medical errors." To do this, the Administration is investing $19 billion to rid the health care field of handwriting and replace it with improved access to data through EMR systems and software.

Ironically, increased use of EMR technology will itself lead to a variety of HIPAA issues, predicts Dr. Goldberg. "The growth of electronic communications raises legal concerns of medical licensure in a state other than where the physician is licensed, and in what jurisdiction a lawsuit will be filed. This issue is growing in importance as we communicate with more patients in different locations, through our Web site and via e-mail." "Electronic medical records increase risk, as well," agrees Ms. Essick. "Electronic health records, e-mail, text messaging and telemedicine — they all have different components of risk, especially when dealing with a patient's privacy. Yet, EMR can be used as a risk-reduction tool when it is properly incorporated into a practice."

Medical Protective was one of the first insurers to offer a 2.5 percent premium credit to any practice using an EMR system as a risk-reduction tool. But the practice has to demonstrate how the system reduces their risk. "A couple ways a practice can do this includes performing random audits of their [electronic health records] system, and looking for such things as missing documentation and pending lab results," explains Ms. Essick.

Simplification through technology may ultimately lead to cost savings for the health care industry, but it may be simple communication that could really mitigate risk in a cosmetic surgery practice.

"We commend ourselves on our communications, starting with the fact that we never have our front staff discuss the procedures with the patient," Dr. Goldberg says. "If a patient wants to know more about a procedure, they might be able to speak over the phone with a nurse who will give broad strokes, explaining that every patient is different and there are no guarantees with any result. If they want further information, a consultation with a doctor is scheduled."

Following a procedure, Dr. Goldberg extends an open-door policy through his personal e-mail address. "It takes 10 seconds to reply to an e-mail and you would be amazed how it makes people very happy, and when they have that security [of your communication], they're less likely to find fault with you."

In the end, the beginning of minimizing your risk is through risk awareness, says Ms. Essick.