by

JEFFREY C. ANDERSON

LAW OFFICES OF JEFFREY C. ANDERSON

9601 McAllister Freeway, Suite 1250

San Antonio, Texas 78216

(210) 340-8880

(210) 340-8885 Fax

ST. MARY=S - TEXAS TECH SCHOOLS OF LAW

MEDICAL MALPRACTICE CONFERENCE

San Antonio Airport Hilton

San Antonio, Texas

April 8-9, 1999

Two years ago I presented a paper at this Medical Malpractice Conference entitled ACosmetic Surgery Misadventures.@ The focus of that paper was surgery done solely for cosmetic reasons by plastic surgeons and other physicians practicing in the area of cosmetic surgery. In that paper I reported that the number of surgeries performed for cosmetic reasons in the United States had risen more than sixty percent (60%) between 1981 and 1990. Between 1965 and 1990 the total number of physicians specializing in cosmetic or plastic surgery doubled in number. The number of surgeons today performing cosmetic or reconstructive procedures continues to grow. One only needs to count the billboard advertisements or scan through the Yellow Pages to see the increasing number of physicians competing for plastic and cosmetic surgery patients. In the Southwestern Bell Yellow Pages for October 1988 through October 1999, there are more paid advertisements by plastic or cosmetic surgeons than any other speciality in medicine. Advertisements for body contouring, breast enhancement, laser treatments, abdominal contouring, varicose vein removal and other procedures take up more advertising space than all of the other medical specialities put together. As stated in the previous paper, it is not surprising that with this growing number of plastic and cosmetic surgery procedures being performed on an increasing number of individuals in this country, the number of plastic and cosmetic surgery malpractice cases continue to increase at a very high rate.

There continue to be many reasons for the increased number of plastic and cosmetic surgical procedures which are performed a day. With the advent of laser and other minimally invasive procedures, patients are less deterred from undertaking reconstructive or cosmetic surgery by the fear of a complicated, expensive operation requiring general anesthesia and hospitalization. The increasing number of affluent ABaby Boomers@ also continues to play a significant role in the growing number of cosmetic surgery operations. As the ABaby Boomer@ generation ages, their motivation for seeking cosmetic surgery is not only the desire to remain youthful, but to feel more competitive in a working environment where they feel challenged by younger colleagues.³ The number of working women with discretionary income has increased so the potential patient population for cosmetic surgery has also increased. The continued improvement in health care and the focus on youth has resulted in an increase in the number of healthy affluent elderly persons, many of whom are retiring at earlier ages, but still desire to seek productive, active lives. The lack of insurance coverage for purely cosmetic procedures has had little impact on these relatively young and affluent retirees.

While the demand for surgical procedures that enhance a patient=s physical appearance may roughly correlate to the society changes and trends that have developed over the past few decades, many believe that the influx in the number of physicians from different specialties performing these procedures may be attributable to the potential for huge profits from an ever increasing patient base. Potential for financial gain for doctors performing plastic and cosmetic surgery, when compared to other areas of medicine, makes the practice of cosmetic and plastic surgery even more lucrative. The reason for this may be that most cosmetic surgery procedures are not covered by health insurance programs, and therefore, physicians are free to set their own fees and to have some confidence that the fee they charge will eventually be paid. Doctors performing plastic surgery, reconstructive, and cosmetic procedures are typically paid up front and can charge what they like, while the patient is forced to make crucial decisions without the protective umbrellas provided by the insurance industry. Of course, this has lead to an increasing number of injuries arising out of medical mistakes which have occurred as a result of procedures being performed outside of the peer review setting of a hospital by physicians practicing in unrelated medical specialties.

What has come to be defined as plastic surgery today may in fact encompass many different areas and specialties in medicine. In the plastic sense, plastic surgery involves the surgical reconstruction or correction of injuries or defects through the use of invasive surgical procedures in a hospital or outpatient surgical center. But plastic surgery may also be thought of as including chemical peels and laser resurfacing which may not fit exactly within the strict definition of Asurgery.@ Therefore, it=s not surprising that some physicians who have become board certified in the area of plastic and reconstructive surgery, as recognized by the American Board of Medical Specialties, may routinely perform procedures which are otherwise the provinces of dermatologist or maxilla facial surgeons. On the other hand, you may have health care providers who are primarily trained to be dentists performing complex cosmetic surgical procedures after having become Aboard certified@ by the American Board of Cosmetic Surgery (ABCS). This board is not recognized by the American Board of Medical Specialties.

A. Origin of the Profession: The Demon Barbers.

Plastic and reconstructive procedures are some of the earliest known forms of surgery recorded. Perhaps its origin was more than 2,000 years ago in India where Hindus routinely punished adultery by slicing off a matrimonial intruder=s nose. The earliest Hindu plastic surgeons attempted to repair this facial and social blemish by removing portions of the skin from the victim=s forehead or check and then shaped the transplant by stretching the skin over a leaf and stitching it over the hole where the victim=s nose used to be. There are no reports on how successful this procedure was. The operation was improved upon in Bologna in 1597 by Gesparo Tagliacozzi (1546-99), who raised a skin flap from the arm, bound the arm to the nose, and when the transplant took to its new bed he cut the arm free at the roots and stitched the flap in place. This procedure was somewhat more successful, but the finished product left a lot to be desired.⁴

One of the first known cosmetic surgery procedures was a treatment for wrinkled eyelids, currently known as blepharoplasty. Historically, its origins date back to Celsus, who lived from 25 B.C. to 50 A.D., and is believed to be one of the first to describe incision of the upper eyelid skin for treatment of the Arelaxed eyelid.@⁵ Albuscasis, a famous Spanish surgeon practicing around 1,000 A.D. proposed the use of a crescent-shape hot cauterization for treatment of the relaxed eyelid. In Baghdad during the same period, a different approach emerged where one would pinch the skin of the patient between two wooden bars for ten days. This procedure resulted in a necrotic rotting of the excess skin which subsequently fell off, leaving no scar.

The history of surgeons, and particularly plastic surgeons, is perhaps more interesting than other physicians, because their origin derived from barbers, who carried their trade of snipping and shaving to an end one might call extreme. The University of Paris Medical Facility, which had been added to Divinity, Arts and Law in the 12th Century by Louis VII, raised the standing of its barbers in 1503 by embracing them, not as the long roaming surgeons, who it hated. Barbers in London, England had formed guilds and practiced as a trade union. Barbers sported the enduring red and white stripped barbers pole, symbolizing bandaging and bleeding. After almost 150 years, London surgeons began to feel that barbers were not at all the sort that they cared to mix with and petitioned Charles II for separation. This was eventually granted by George II in 1745, and built Surgeon=s Hall in the Old Bailey.⁶

War and combat contributed more to the development of plastic and cosmetic surgery than any other events in history. Bullet wounds, fire burns, and sword flashes provided means for surgeons to invent new procedures to treat physical disfigurement and injuries. Reconstructive surgery was born on the battlefield. During the 1800's, American and European doctors experimented with various techniques, such as skin grafting and rhinoplasty for reconstructive purposes. While these historical innovations provided a background for the profession=s future practitioners, it is not until the 20th Century that surgery for aesthetic reasons alone began to impact the training of the plastic and reconstructive surgeons.

In the 1900's, plastic surgery became fully recognized as a defined speciality during World War I. As a result of the injuries involving severely damaged bodies and faces that were suffered in this particularly brutal war, physicians were pressed with the task of treating these casualties.⁷ During the war, aesthetic interests in plastic surgeons were largely secondary to reconstructive concerns. However, following the war and due to the experiences that the physicians had gained in performing so many procedures involving cosmetic techniques during those years, literature about new cosmetic techniques began to surface and proliferate. Through the experience in dealing with tragic injuries, surgeons found opportunities to redefine reconstructive, cosmetic and aesthetic operations.

One of the pioneers in the area of plastic surgery during this time was Sir Delf Gillies. In 1915 Gillies was treating soldiers wounded in WWI in the Cambridge Hospital. Because of the nature of his practice and the patients that he was treating, Gillies was forced to move his hospital to the ugly London suburb of Sidcup, but was provided with a brand new AQueen=s Hospital@ for a continuation of his work. Queen=s Hospital became the largest and most important center of plastic and reconstructive surgery in the world. As word of Gillies= facility spread, American doctors flocked there to observe and learn new procedures and techniques. Gillies influenced many who would later become key figures in developing plastic and reconstructive surgery in the United States.

In 1921, the American Association of Oral Surgeons was organized. During the 1920's, most of the work in plastic surgery was performed by doctors who had degrees in both medicine and dentistry. Shortly after its establishment, the name of the association was changed to the American Association of Oral and Plastic Surgeons, and in 1923, the dental degree requirement was dropped. By 1942, the word Aoral@ was omitted, and the American Association of Plastic Surgeons (AAPS) emerged. Over the next fifty years, membership steadily increased, but the Aassociation@ would remain largely an exclusive club, restricting membership to surgeons, on often an ambiguous criterion. This eventually spawned the emergence of competing groups of physicians who practiced plastic surgery, but were not asked to join the AAPS.

The exclusionary policies of the AAPS offended not only the other plastic surgeons, but also many surgeons who practiced other areas of medicine. Eventually, Jaques Maliniac, a Polish born Frenchmen, along with other rebuffed doctors formed a new group, open to all practitioners engaged in plastic and reconstructive surgery. It was their hope that this new group would serve as an open forum for the sharing of information with the members of other specialties interested in plastic

surgery. In 1931, this new group became the American Society of Plastic and Reconstructive Surgery (ASPRS).

During this period, however, plastic surgery remained focused in large part on reconstructive surgery and on helping patients with trauma and congenital defects, such as cleft lips and palates, and burn victims. The practice of aesthetic surgery remained largely behind closed doors, yet most plastic surgeons performing such procedures yearned to be recognized as serious plastic and reconstructive surgeons. Another hindrance to the recognition of cosmetic surgery as a separate field in a medical speciality was the fact that there were few materials at the disposal of surgeons desiring to perform such procedures. Many had to depend less on educational materials and formal training and more on skill and imagination in refining various techniques.

This lack of guidance from practitioners in the area lead to further efforts to spread information regarding techniques and procedures. In 1937, a group of determined practitioners met in St. Louis to create the American Board of Plastic Surgery. Their aim was to raise the standards of plastic surgery on a national level. Many doctors involved in cosmetic and plastic surgery felt that medical knowledge had expanded to a point where no doctor could cover it all, and board certification specialization offered a logical solution to the growing needs and concerns of the industry. To protect the public, who are often left at the mercy of misdirected practitioners, the new board sought to establish uniform guidelines for those seeking membership in the board=s specialization. The American Board of Plastic and Reconstructive Surgery, as it became known, still exists today, and is recognized as a medical speciality by the American Board of Medical Specialties.

B. Reconstructive Versus Cosmetic Surgeons.

The origin of modern plastic surgery has often been described as a byproduct of gun powder. The first surgeons limited that practice to the repair and reconstruction of traumatic injury sustained on the battlefield. While most early surgeries were performed in unsterile conditions, without anesthesia, on patients who were victims of traumatic projectiles, the surgeons considered themselves very fortunate if the patient merely survived the procedure. Early plastic surgeons concentrated their efforts on saving the patient and minimizing his traumatic disfigurement. Very little concern was paid toward the ultimate effect of his disfiguring wound. Certainly, no initial thoughts were entertained about operating on an otherwise healthy and uninjured individual, solely for the purpose of improving his or her attractiveness. With the discovery of the origins of infection and the development of anesthesia, surgeons could turn their attention to disfigured individuals whose lives were not in danger. Reconstructive surgery could then be performed in a careful, deliberate manner in a relatively clean and sterile operating room in a hospital set up to provide for adequate recuperation. Even with the advances of modern medicine, including anesthesia and infection control, it was still many years before plastic surgeons expanded their profession from reconstruction to purely aesthetic cosmetic surgery.

Unlike reconstructive surgery, which is performed on abnormal structures of the body caused by birth defects, developmental problems, injuries, infections, tumors, or disease, cosmetic surgery is an elective procedure that is performed to reshape or restore normal structures of the body to improve the patient=s appearance and self-esteem.⁸ Such alterations may include face lifts, breast enlargement, removal of wrinkles or excess fat, and the reshaping of the nose or other facial features. It is important to note that unlike any other type of surgery, cosmetic surgery is not necessary for the patient=s physical health. Rather, patients who elect to have cosmetic surgery are simply dissatisfied with their physical appearance and seek a surgical remedy. Because the aesthetic cosmetic surgery patient is healthy and pain free, he is less likely to be grateful to his surgeon for merely surviving an operation without excessive disfigurement. If the patient does not feel that his appearance is substantially better post-operatively than pre-operatively, the surgeon will likely be sued. For this reason, the liability of the plastic surgeon is directly dependent not only his skill and training but on the type of patients that he undertakes to treat. Plastic surgeons who limit their practice to reconstructive surgery only are far less likely to be charged with medical negligence than those physicians whose practices primarily consist of aesthetic cosmetic surgery. For that reason, the focus of this article is primarily upon those plastic surgeons practicing in the area of cosmetic and aesthetic surgery.

The historical evolution of plastic and reconstructive surgery and of cosmetic surgery is of considerable importance today when discussing the issue of medical certification, an area which has long been the topic of debate within the speciality of plastic surgery. From an attorney=s perspective, medical certification of physicians, and the loose regulations that often characterize said certification, are potential areas of negligence and liability when dealing not with expertly trained plastic surgeons, but with physicians in other areas of specialization who have involved themselves in the practice of plastic and cosmetic surgery. Much of the dispute concerning cosmetic surgery is attributed to the overlap in many areas of medical specializations with that of physicians practicing within the speciality of plastic and reconstructive surgery. The American Board of Medical Specialties (ABMS) certifies 24 medical specialties, ranging from allergy to urology. The American Board of Plastic Surgery (ABPS), with nearly 4,000 members, is one of the specialty boards. Only ABPS-certified physicians are recognized by the American Board of Medical Specialities as having qualifications and skills necessary to perform cosmetic surgery. To obtain such certification from the ABMS, plastic surgeons must satisfy several rigorous requirements, including written and oral examinations, completion of at least three years of general surgical training, fulfillment of a two to three year residency in plastic surgery, and a minimum of two years experience in a practice of plastic surgery. Recognition by the ABMS as a bona fide medical speciality, as is the ABPS, is a key element in what some describe as a Aturf war.@

B. Plastic Surgeons: Us vs. Them.

Unlike reconstructive surgeons, aesthetic cosmetic surgeons may come from many different directions and backgrounds. This diversity in basic training has lead to a turf war over the types of medical procedures which may be performed by physicians practicing in Aaesthetic cosmetic surgery.@ At the heart of this dispute is the fact that thousands of cosmetic surgeons who are not certified by the ABPS also hold themselves out as being Aboard certified.@ Many are certified by the American Board of Cosmetic Surgery (ABCS), a board not recognized by the American Board of Medical Specialties, and often cite this Acertification@ in their yellow page ads and promotional literature. This affiliation of doctors includes many of those who are practicing in the area of cosmetic surgery, yet are board certified by the American Board of Medical Specialties in another area of specialization, such as dermatology, gynecology, ophthalmology or otolaryngology, but usually not plastic and reconstructive surgery. Consequently, as thousands of Acosmetic surgeons@ hold themselves out as Aboard certified,@ a conflict exists between plastic surgeons, who are trained in plastic and reconstructive surgery and sanctioned by the American Board of Medical Specialties, and Acosmetic surgeons,@ who are certified in a range of specialties from dermatology to ophthalmology, but have some additional training in cosmetic techniques and are not certified by the American Board of Medical Specialties. Many ABPS-certified physicians believe that the ABCS was created merely to provide a vehicle to induce the public into thinking its members have more training in cosmetic and aesthetic surgery than they actually have.⁹ This lack of a uniform system of certification and regulation of physicians practicing in aesthetic surgery has obvious implications of competence and qualifications in any malpractice case. Cases involving surgeons who are not properly certified or are certified by a questionable Acertification board@ should alert a reasonably prudent attorney to further investigate the qualification and background of the treating physician. ABoard certification@ has also lead to confusion for the consumer who is often the victim of the current system that espouses principles of Acaveat emptor.@ Patients who select their physician for an elective cosmetic surgical procedure from a billboard or Yellow Page ad are asking to become your next client.

To date, ads promoting beauty through cosmetic surgery procedures appear on television, in the newspaper, and on billboards. They promise a return to wrinkle-free youth through painless procedures that may be paid for by credit card or with easy credit payments. Susan Jenks, Advertising: Policing By M.D.=s Foiled; includes a related article on Yellow Pages use by doctors, MEDICAL WORLD NEWS, May 22, 1989, at Page 22. Until the 1980's, this type of promotional marketing by physicians was unheard of, due to the American Medical Association=s Aprinciples of medical ethics@ which banned all advertising by doctors.¹⁰ In 1975, the United States Supreme Court in Bates v. State Bar of Arizona, 434 U.S. 881 (1977), ruled that prohibiting professional advertising was an illegal restraint of trade. This decision set in motion a lengthy and ultimately successful action by the Federal Trade Commission (FTC) against the AMA=s position in 1982.¹¹ Freed from restrictions by such professional organizations, the marketing of medical services and physician entrepreneurism became a reality. Specialty areas like cosmetic surgery became flooded with competitors using complex and extensive marketing programs. As the trend grew, so did the number of physicians compelled to utilize marketing and promotional tools. Not surprisingly, prices have risen and quality has declined, but advertising and promotion have flourished. This freedom of marketing sparked the debate that continues today--the role of marketing within the medical profession and the health care industry=s duty to protect the general public from misleading advertisements. Rising concerns over such issues as deceptive advertising, consumer protection, professional ethics, and the quality of services lead to a major congressional investigation in 1989. Headed by Congressman Ron Widen (Democrat of Oregon), who chaired the House Small Business Subcommittee on regulation, business opportunities and energy, a six-month investigation led the subcommittee to conclude that Ait has become virtually impossible for patients to tell who is a good, qualified doctor and who is not.@¹² A congressional hearing on cosmetic surgery that followed identified three major problem areas: (1) misleading and deceptive advertising practices; (2) poorly trained practitioners; and (3) the lack of effective peer review.¹³

A. Misleading and Deceptive Marketing.

Advertising techniques employed by many physicians offering cosmetic surgery procedures have been criticized as being overly optimistic and highly persuasive. Many ads imply fantastic results, yet fail to provide information about the potential health hazard of the procedure. Testimony of cosmetic surgery victims to the House Subcommittee demonstrates such criticism. One witness, whose botched Atummy tuck@ surgery nearly cost her her life, testified to the subcommittee that Athe ads almost sounded like going to get a tooth filled. . . . go in, in the morning and be home by the afternoon.@¹⁴

In connection with this misleading advertising, the current system of nonregulation has promoted ignorance among consumers by allowing the emergence of independent and unsupervised Aboards of certification.@ According to the subcommittee, Aanyone and any group can create a board, call itself anything and issue certificates suitable for framing. So far, more than one hundred of these self-designated boards have sprung up.@¹⁵ These newly created boards give physicians who are not board certified in plastic and reconstructive surgery an appearance of an accreditation, and concomitantly, legitimacy and quality. As a result, consumers are often uninformed and confused as to which boards are most legitimate. Representative Widen observed that Athe choices consumers have are hopelessly blurred by the number of medical boards out there, all claiming to be the best. Consumers simply can=t tell the difference.@ Id. This sentiment was affirmed by a witness to the subcommittee, who testified that they were unaware of the subtleties in the medical certification process and believed the words Aboard certified@ meant that a doctor was qualified to do his job.¹⁶

The subcommittee concluded, after an intensive survey of magazines, newspapers, and Yellow Page directories, that cosmetic surgery advertisements are often blatantly false and deceptive.¹⁷ In identifying areas of concern, the subcommittee cited ads that:

B. Inadequately Trained Cosmetic Surgeons.

Overlapping the issue of marketing techniques, and especially the ongoing Aturf war@ and certification, an issue of liability that often comes up when dealing with cosmetic surgery cases is physicians and practitioners who lack proper training. From a plaintiff=s perspective, this concern involves practitioners who hold themselves out to the public as being sufficiently trained in certain areas of expertise. An unfortunate result of the current system is that there is nothing to prevent a

licensed physician who has minimal or even no specific training or experience for performing aesthetic cosmetic surgical procedures. While many doctors who advertise as being properly trained to perform cosmetic surgery are doubtfully qualified, there is a significant and growing minority of doctors who are not qualified at all. The term Aboard certification@ has become a marketing tool for many aesthetic cosmetic surgeons, who realize that consumers often value such certification information as an indicator of competency and quality. Certification, by its name, implies that a physician has completed some formal training specialty in cosmetic surgery and has been tested of a panel of his peers. This certification problem has lead to the creation of a number of Aboards@ in the field, only a few of which are recognized by the American Board of Medical Specialties.

In a widely publicized incident, a physician in Pasadena, Texas, was held responsible by the Texas Board of Medical Examiners for the death of two liposuction patients and for seriously injuring three others. All five patients developed severe complications caused by excess fat removal. The doctor, a general practitioner, Alearned@ liposuction by attending a three-day seminar sponsored by the American Society of Liposuction Surgery. He then opened the Pasadena Liposuction Surgical Center and put up billboards that advertised Athe latest technique for losing weight without dieting.@¹⁸ This case illustrates what can happen when a doctor with minimal training begins to practice cosmetic surgery and may represent an unfortunate trend from in part, such deceptive advertising in conjunction with untrained or improperly trained surgeons.

C. Lack of Effective Peer Review at Outpatient Facilities.

As previously mentioned, office settings are commonly used today for performing cosmetic procedures. Cost containment and convenience, factors that are often lacking in the inpatient hospital setting, have made clinical care attractive to many practitioners. However, major concerns exists concerning office-based facilities in that the surgeon does not undergo peer evaluation as do doctors who operate in a hospital setting. This, in turn, raises various concerns of consumer safety and quality of the cosmetic surgery services being offered. The American Society of Plastic and Reconstructive Surgeons founded the American Association for Accreditation of Ambulatory Plastic Surgery Facilities (AAAAPSF) in 1980, for the purpose of implementing an accreditation program for ambulatory plastic surgery facilities. This service, however, is merely voluntary, and is not a required accreditation. One requirement of the AAAAPSF accreditation is that the practicing physicians of the facility must be certified by the American Board of Plastic and Reconstructive Surgeons. Clearly, this excludes accreditation from the vast number of physicians who practice aesthetic cosmetic surgery, but are board certified in another medical specialty. Not surprisingly, outpatient facilities without AAAAPSF certification and proliferated, in some cases with very little regulation other than standard building codes.¹⁹

While board certification issues and improperly or insufficiently trained physicians certainly present areas of concern in the malpractice context, problems inherent in the settings in which cosmetic surgery is predominately performed can also set the stage for an incident of malpractice. Cosmetic surgeons who practice in an office setting may have increased liability for two reasons. First, office facilities, for various reasons, may be deemed inadequate when compared to a hospital surgical setting. Usually there is only one physician in attendance, who may or may not be trained in ACLS protocol. There may also be few trained health care staff in attendance to aid in the event of an emergency. Operating facilities in general have an adequate life saving equipment available in the event of a medical emergency. Second, in an office setting, the potential liability of a plastic or cosmetic surgeon may be higher because of the loss of the agency relationship between ancillary personnel and an employer other than the surgeon.²⁰ Even with these risks and deficiencies, many physicians prefer to perform their procedures in the outpatient office setting because of cost containment and the lack of medical insurance payments for aesthetic cosmetic surgery procedures.

A. Preoperative Screening of Patients.

One of the biggest pitfalls for a physician whose practice is primarily aesthetic cosmetic surgery is a level of expectation of their patients. Unlike a patient who has undergone surgical reconstruction following a traumatic automobile accident, a patient seeking aesthetic cosmetic surgery to increase his or her youthful appearance may feel that he has been the victim of medical negligence if his post-operative appearance has not improved. While preoperative assessment is essential in evaluating a patient for any cosmetic surgical procedure, it is absolutely essential in evaluating a patient for an office surgical procedure. While some patients are not good candidates for cosmetic surgery under any circumstances, others may not be good candidates for office cosmetic surgery, due to underlying medical problems or disorders. In investigating the care provided by a cosmetic surgeon in an office setting, it is important that an attorney study the patient=s charted preoperative evaluation.

The primary purpose of a preoperative evaluation is to unmask potential anesthesia, bleeding, and coagulation problems, and to identify risks relating to possible underlying medical disorders. Before performing an office surgical procedure, the plastic or cosmetic surgeon has a duty to obtain a detailed history of a patient relevant to identifying specific risk factors that may increase the chance of a surgical complication. Depending upon the degree of risk, some patients may not be suitable candidates for an office surgical procedure and would be better off served if the procedure was performed in a hospital setting in the event that a surgical or anesthesia complication occurred. A detailed evaluation and history of the patient should include questions concerning bleeding and coagulation problems, cardiovascular or pulmonary disorders, liver functions and endocrinology studies. In addition, the American Society of Anesthesiologist have developed a scale that categorizes patients as to their general condition and the severity of their disease as it relates to potential mortality. A Class I patient is one considered to be healthy and perfectly fit for an elective procedure. A Class III patient is one with a severe systemic disease which will impact or limit his activities and puts him at a greater surgical risk. There are also Class IV and V patients who, under no circumstances should be considered for outpatient elective surgery. Generally, office surgical procedures should be limited to ASA Class I or, at the very most, Class II patients. While ASA Class III patients may occasionally be suitable for office surgery, patients with more severe diseases are best hospitalized since they present a high risk of increase morbidity and mortality. Therefore, when evaluating a medical malpractice case, an attorney should utilize the accuracy and depth of the physician=s assessment of the patient=s suitability for non-hospitalized surgery and the AMA scale regarding a patient=s surgical risk as a starting point for an analysis of potential negligence.

B. The Cosmetic Surgeon=s Individual and Vicarious Liability.

Since the risk of complications is much lower when dealing with a healthy patient, preoperative screening and proper patient selection is imperative to exclude patients, medically or physiologically, who are unsuitable for cosmetic surgery. If a complication does occur, part of any attorney=s investigation into possible negligence should include the following inquiry: (a) whether the care rendered to the patient was compromised by being rendered in an outpatient surgical facility; (b) whether it is the standard of care for other surgeons to perform such surgery on an outpatient basis; (c) whether proper preoperative screening should have revealed the patient as unsuitable for surgery on an outpatient basis; and (d) whether recognition of a complication was unduly delayed by the patient not having received surgery in a hospital.²¹

With respect to equipment, a physician who performs cosmetic surgery should demonstrate the quality of care in an office setting as if it were a hospital surgical procedure. This includes the ability to correct a surgical or medical complication, should it occur, without compromising the patient=s health. Additionally, a cosmetic surgeon should demonstrate an ability to deal with an emergency, including ready access to a specialist if needed, an arrangement for rapid transfer to a nearby hospital or emergency room.

An important consideration for plaintiff=s attorneys handling malpractice cases brought against cosmetic surgeons performing outpatient surgery is the fact that avenues for the allocation of risk and loss among other co-defendant tortfeasors are usually not available to the surgeon who practices in an office setting with few or lesser supporting personnel and equipment. This increases exposure to a fewer number of defensible parties.

C. Operative and Post-Operative Patient Monitoring.

Surgery performed in an outpatient office setting always increases the risk to the surgeon of operative and post-operative complications, which may be otherwise prevented through patient monitoring which routinely occurs in a hospital environment. If surgery is performed outside of a hospital operating room, the cosmetic surgeon must make arrangements beforehand to handle complications or emergencies should they arise. This plan should include a rapid transfer to the nearby hospital, as well as an arrangement with a nearby blood bank in the event of an emergency transfusion, together with a call list of available surgeons or other medical specialist. An attorney evaluating a medical malpractice claim should also determine whether the operating cosmetic physician undertook proper preoperative precautions and precautions during the operation itself, and was also prepared for post-operative complications through the utilization of adequate staffing and proper monitoring. Some operative and post-operative concerns and complications include anesthetic complications, respiratory complications, toxic responses resulting in cardiopulmonary arrest and other nosocomial infections. In light of these considerations, the attorney should carefully review medical documentation to determine to what extent precautions were taken to rapidly identify and treat preoperative, operative and post-operative complications should they arise in the outpatient environment.

Beyond preoperative evaluation of the patient, the cosmetic surgeon must evaluate the patient, prior to any surgical procedure, for possible psychological concerns. Likewise, an attorney evaluating a cosmetic or plastic surgery malpractice case should ascertain whether or not the patient has a history of psychiatric problems which may predispose him to unrealistic expectations. An individual who requests cosmetic surgery may be an unsuitable candidate for various reasons. First, if the procedure is performed and a problem occurs, no matter how minor, it may lead to some catastrophic psychosocial effects, and if severe enough, it would interfere with the recovery process. Second, even if the procedure is performed satisfactorily, the patient may still perceive the procedure to have failed if it does not meet his inflated expectations of success. Although medical science and technique have made tremendous advances in the past decade, there is still no cosmetic surgical procedure capable of making a 50-year-old patient look like he or she is 30 again.

While it is beyond the scope of this article to discuss every cosmetic procedure performed in which errors or mistakes may result from medical negligence or inattention, there are common types of cosmetic procedures which are more frequently identified in cases arising out of various surgical misadventures. It is important to keep in mind that with any surgical procedure, complications can arise that are totally unrelated to any negligence on the part of a cosmetic surgeon, no matter how inadequately trained or experienced. These complications include post-operative infections, stretching of sutures, fibrotic changes and others. When complications do occur, such as post-operative infections, the cosmetic surgeon has a duty to timely recognize those complications and to provide proper treatment or management of the patient=s condition or transport that patient to the nearest facility providing for a physician practicing within the appropriate medical specialty. Failure to diagnose or recognize a complication should certainly result in a legal reckoning through a medical negligence lawsuit.

A. Facial Reconstructive and Cosmetic Surgery.

More reconstructive and cosmetic surgery occurs on the structures of the face than on any other part of the body. As we age, the skin on the cheeks and around the eyelids stretches, the muscles weaken and excess fat gathers in the intersticial spaces. Facial plastic surgeries to correct perceived deformities, including congenital abnormalities, facial injuries or the ravages of aging do not involve extremely complicated procedures; however, the surgery is not without the risk of significant complications.

Cosmetic surgery in the area of the eye or eyelid is referred to as a blepharoplasty. The object of this surgery is to remove upper eyelid fat which causes droopiness of the lid and to remove fatty pouches below the eye which may cause a patient=s eye to appear swollen or puffy. A blepharoplasty can be performed with standard surgical instruments or through the use of lasers. A blepharoplasty is associated with a broad range of complications including dry eye syndrome, the inability to close the eyes, and even blindness.

One of the earliest attempted reconstructive or cosmetic procedures was the rhinoplasty, or nose job. Although the rhinoplasty, in some form or fashion, has been performed by surgeons for centuries, and it is still considered one of the most difficult and unpredictable cosmetic surgery procedures. One of the reasons the rhinoplasty is so complicated is that it must be tailored to each individual injury or deformity. The surgical procedure is complicated because it is not one single process, but rather a series of surgeries applied to separate parts of the nose. In general, the rhinoplasty is directed to four main parts of the nose, including the nasal bones, the upper lateral cartilage, the alar cartilage and the dorsal septum. Perhaps the rhinoplasty, more often than any other cosmetic surgery procedure results in post-operative complications and/or patient dissatisfaction. Complications may result from technical failure on the surgeon=s part, such as inadequate or excess hump removal, excess septal shortening, or ineptly performed alar base resections. One of the most frequent complications which occurs even in surgeries which are perceived to be cosmetically successful is the patient=s inability to breathe through one or both of his nostrils after the surgery. Patient dissatisfaction with their final appearance frequently occurs because the nose is perhaps the most prominent feature on an individual=s face.

The face lift, or rhytidectomy, was once thought by the public and the medical profession to be a frivolous procedure which was performed on only the most unduly vain patients by physicians with little regard for the Hippocratic oath. Within the last two decades this opinion has substantially changed to the extent that the rhytidectomy may even be considered a necessary procedure subject to coverage in medical insurance policies, on some occasions. The rhytidectomy may be a minimal procedure or may be extremely extensive, depending upon the objectives of the patient and their physician. Complications associated with a rhytidectomy include bleeding, aesthetic complication, facial nerve injuries, sensory changes, infection, facial asymmetry, and scarring. One of the most frequent complications occurs when the procedure is too aggressive and the physician fails to protect the capillary bed of the facial skin flaps, with a tragic result of large areas of skin over the patient=s cheek bones becomes necrotic and falls off.

B. Torso Reconstructive and Cosmetic Surgery.

When one mentions the phrase Aplastic surgery,@ the public commonly thinks of primarily two procedures: a Aface lift@ and a Aboob job.@ Breast augmentation is just one of several reconstructive and cosmetic procedures now available to reshape a patient=s body. Breast augmentation has been performed by plastic surgeons for many, many years and is by far the most litigated area of cosmetic surgery. Dating back to the 1980's, the controversy over the safety of silicone implants originated when medical literature linked silicone breast implants with systemic disease, most often connective tissue disease.²² This prompted the Food and Drug Administration=s (FDA) investigation, as well as research within the medical community, into the safety of silicone in breast implants. In 1991, a trickle of lawsuits became a flood when the FDA banned the use of silicone-gel implants, except for reconstructive patients, asserting that the implant manufactures had failed to prove that their products were safe.²³ The FDA=s claim was not that the silicone implants were unsafe, but that the manufactures had failed to properly prove that they were in fact, safe. The FDA advisory panel stated, AThere was no evidence that implants were unsafe, but there was insufficient evidence to prove safety.@²⁴ The FDA Commissioner, David Kessler, explained, Ait is the responsibility of the manufactures to show that the medical devices are safe, not the FDA=s responsibility to show that they are not. The breast implant manufactures have simply not fulfilled their obligations to produce evidence of safety.@²⁵ This determination provided the basis for many negligence lawsuits against the manufactures and the large awards that followed. The resulting million dollar judgments lead manufactures, headed by Dow-Corning, to an agreed class action settlement that created a $4.25 billion fund to cover the claims of over nearly 400,000 patients.²⁶ Nearly half of all the women with breast implants registered for the settlement, claiming to be currently suffering from an implant related illnesses.²⁷ Subsequently, Dow-Corning declared bankruptcy when too many women opted out of the class to pursue their own lawsuits. The alternative to silicone breast implants was the use of saline-filled implants; if broken, the salt water solution in saline implants would pass through the body without the risk commonly associated with silicone. Yet, the sacks used in saline-implants are most often made of silicone, and thus do not provide a completely risk-free alternative.

The pendulum soon swung in the opposite direction when researchers began to claim that the overwhelming evidence in medical science seemed to reveal that the implants were, in fact, safe. In 1994, the epidemiological studies conducted in the United States and overseas, the American Medical Association (AMA) and other professional medical societies claimed that there was not provable relationship between implants and any disease.²⁸ Such studies either failed to show significant increases in the frequency of classic auto-immune disease in women with silicone breast implants, or documented only a small risk. In some, the conclusion was that there was no higher incident of auto-immune disease than that found in the general population. Discounting the claim that breast implants caused immune disorders or increased the risk of breast cancer, the AMA went on to state that, Athe concern over breast implants is not warranted based upon the current scientific evidence.@²⁹

A recent study, however, may lead new support to the controversy surrounding silicone breast implants and whether the implants attributed to systemic auto-immune disorders. Tulane University researchers conducted a study comprising women who had silicone breast implants, women without implants but were positive for other classic auto-immune diseases, and a controlled group of healthy women without implants.³⁰ The objective of the blind study was to assess whether there was any difference in the proportions positive for serum antibodies among the silicone breast implanted recipients and the nonexposed controlled groups. The test indicated that women with silicone breast implant exposure were more likely to have a higher level of antipolymer antibodies than the healthy controls or one with specific auto-immune disease. Creating the existence of a laboratory remark, the correlations may help to validate a definition of a clinical syndrome in silicone breast implant recipients.³¹ The state of this litigation still remains unsettled. While the

medical evidence still seems to preponderate in favor of the silicone-implant manufacturer=s contention that their products present no significant risk in an otherwise healthy patient, the issue is far from resolved and research goes on.

Even without the controversy surrounding the silicone breast implant, the surgical aspects of breast augmentation are not without complications. The risks routinely reported in the literature include capsular contracture, hematoma, alteration of nipple sensitivity, infection and implant rupture.

Although plastic surgery on the breast is most frequently associated with augmentation, a significant number of plastic surgery procedures involve breast reductions. A breast reduction is indicated where a patient=s breasts are large and result in the creation of other medical problems, such as back and neck injuries. Since breast reduction may have a medical justification beyond enhancing a patient=s appearance, the procedure is frequently covered in medical insurance policies. Breast reduction still involves the same surgical risks associated with breast augmentation.

One of the other most commonly performed reconstructive or cosmetic procedures involve the reshaping of the abdomen and lower body. This procedure is known as an abdominal plasty or Atummy tuck.@ The general process involves the removal of excess fatty tissue and skin and a tightening of the underlying muscles, including repositioning of the naval, if appropriate.

As with any major surgery, the likelihood of complications can be reduced by proper patient selection; however, complications still occur including skin dehiscence, flap necrosis, hydrotropic scarring, nerve damage and excessive bleeding.

Liposuction has become a more popular method of abdominal recontouring. Liposuction, in contrast to the surgical procedure, is a less intrusive procedure that can reshape specific areas of the body by removing deposits of excess fat. Liposuction is also used to slim hips and thighs, reshape calves and ankles, flatten the abdomen, and may also be used to eliminate the Adouble chin.@ The procedure, literally defined as a fat vacuuming, enables a surgeon to recontour the body by removing deposits of excess fat from specific areas of the body, neck and face. With the use of a suction apparatus inserted in small incisions, unwanted deposits of fat cells can be removed from precise areas of the body without the complications associated with long surgical incisions. The risks and complications associated with liposuction, are significant since they can include excessive blood or fluid loss, renal shock and death. Shock, dehydration and myocardial infarction can occur if patients are discharged without adequate fluid replacement. If too much tissue is vacuumed from the body, a patient=s risk of bleeding and infection are increased.

Plastic and reconstructive surgery is possibly the fastest growing area of medicine. As the surgical techniques become more advanced, and less intrusive, the number of patients who will undergo plastic, reconstructive and cosmetic surgery should greatly increase. For a more detailed description of the various cosmetic procedures which are discussed in this paper, I would refer the reader to the article on Cosmetic Surgery Misadventures presented during the Medical Malpractice Conference in April of 1997.

SOMETIMES IT=S NOT SURGERY 2

B. Inadequately Trained Cosmetic Surgeons 9

B. The Cosmetic Surgeon=s Individual and Vicarious Liability 12

C. Operative and Post-Operative Patient Monitoring 13

VS. A BAD PROCEDURE 13