Legal Review & Commentary

Physician’s inexperience: $1 million verdict in Ohio

News: A woman went in for elective cosmetic surgery based on an advertised claim that the physician performing the surgery was proficient in the procedure as "seen on TV." The physician had not been trained to use the technique and equipment and burned the patient’s face. The jury returned a $1 million dollar verdict in the patient’s favor.

Background: A 52-year-old university professor was considering cosmetic surgery to remove fine lines, which had developed with age, on her upper lip. She was involved in freelance projects for local and national theater and television productions that she performed in, directed, and/or produced. After seeing laser resurfacing demonstrated on the television show 20/20 and reading a local doctor’s advertisement in the Yellow Pages that claimed his laser-resurfacing experience used the "same innovative techniques as seen on 20/20," the woman had a consultation with the physician. She specifically asked if he had success with laser resurfacing and was told yes, and she shared with the physician her vocation and desire to remain gainfully employed as such.

The plaintiff underwent laser surgery, the doctor using a CO2 laser known as Sharplan Silk Laser and the Silk Touch Mode with a power setting of 16 watts. Immediately after the surgery, the woman’s chin area was bruised, blackened, and swollen. It remained swollen in the weeks and months that followed and then scarring developed. The doctor’s attempts to treat the scarring were unsuccessful, and she was referred to a dermatologist.

However, she went to another plastic surgeon and was told she had suffered third-degree full-thickness burns as well as permanent scarring. Five corrective surgeries were performed using a Candela laser. The second plastic surgeon then recommended scar revision and skin graft surgery, which could then be followed by two to four more laser surgeries.

She claimed her original physician neglected to apprise her of all the risks involved in the laser procedure and was negligent in his performance of the procedure. She also claimed that the only risk of surgery discussed was redness and that the possibility of scarring and hypo-pigmentation were not mentioned. She further claimed that the Sharplan Silk Laser should have been placed on a more sensitive setting. She presented evidence that the doctor had never read or consulted the user’s manual for the Silk Laser and had received no documented training with the laser.

The doctor admitted that he did not tell the plaintiff about the nature and extent of his training on the laser or other options for treating her. The plaintiff’s claim also included improper credentialing of the doctor to use the Sharplan Silk Laser at the one-day surgery center where the procedure was performed.

The doctor had not attended the training session held at the center after the Sharplan Silk Laser was purchased. The defendant maintained that his time spent at the exhibit booth of Sharplan, at meetings of the American Academy of Dermatology, consulting with the Sharplan sales representative, as well as his past experience with a similar laser, gave him sufficient training to properly operate the Sharplan Silk Laser. The surgeon maintained that the plaintiff was fully informed of all relevant risks and that the scarring that the plaintiff suffered was idiopathic in nature and not the result of negligence on his part.

The claim went to trail. The jury found the physician negligent and awarded the plaintiff $1 million.

What this means to you: "In particular, this case highlights the absolute necessity of credentialing professionals for new procedures," says Ellen L. Barton, JD, CPCU, risk management consultant, of Phoenix, MD. "Again, in establishing the credentialing criteria — education, training, experience, and references — it is critically important that the Credentialing Committee educate themselves on the latest innovations and then incorporate appropriate criteria into the standards prior to granting privileges. Thus, in addition to the basic criteria, it is necessary to develop new and adequate criteria relative to the newest technology. Of course, this becomes even more challenging if a solo practitioner is the only one governing his actions, which may be the case when such surgery is performed in the physician’s office.

"The issue of informed consent is also highlighted in this case. Since the patient was an individual that in her profession had a great need for facial’ integrity, informed consent of the risks involved should have been paramount to the discussion regarding the procedure. Any risk, however insignificant it might be to someone else, that would have the potential to adversely effect the patient’s looks was significant in this instance and should have been part of the informed-consent discussion. In failing to take this particular patient’s profile into consideration, not fully informing the patient of his lack of experience with the new equipment, and seemingly not being frank with the patient regarding her poor outcome; the physician failed to meet the standard of care, and thus was appropriately found negligent. For institutional providers, credentialing and proper informed consent are critical elements in a preventive risk management program," concludes Barton.

Reference

Susan D. Speers v. Tri-County Dermatology Inc., et al., Stark County (OH) Court of Common Pleas, Case No. 1999-CV-02765.