Going under the knife is not an easy decision to make and even though medical practitioners follow a rigorous process, legal cases in this field continue to rise. Richard Matthews, Consultant Cosmetic and Expert Witness, discusses why this is the case and ‘warning signs’ people should look for, in order to avoid costly litigation.
What are common cases you are instructed on as an expert witness?
The scope of Personal Injury within my field of specialist knowledge includes:
- Burns, Scalds & Thermal Injuries
- Scarring to any part of the body however caused
- Soft tissue (non-bony) Hand Injuries (skin, tendons, nerves, amputations, etc)
- Soft tissue loss (e.g. Dog Bites, Road Traffic Incidents, Industrial, etc)
- Facial Damage including Broken Nose
I accept Instructions in cases of alleged Clinical Negligence (in which Breach of Duty of Care may or may not have been admitted) with respect to soft tissue problems/complications (including sensory &/or functional/motor changes) arising from:
- Nursing actions/inactions (e.g. necrosis from tissued i-v lines in babies, pressure sores, etc)
- General Practice actions/inactions
and, in addition to the conditions listed above under Personal Injury, I consider cases involving:
- Cosmetic Surgery
- Skin Cancer
It is well known that UK society in general has become more litigious over the last 30 years and the whole field of Plastic Surgery has certainly not been immune from this trend.
Why are these cases so common and what do you think professionals should do to avoid legal sanction?
The principal cause of personal injury is carelessness on someone’s part, whilst the main cause of clinical negligence is failure to adhere to best practice, coupled with lack of vigilance.
It follows that doctors and nurses need to be vigilant at all times and to adhere to best practice, not least with respect to informed consent and both knowing and adhering to best practice. Getting sufficient sleep when off duty, being as good as possible as a communicator and saying ‘sorry’ when necessary, are additional important steps towards avoiding allegations of clinical negligence and possible consequent legal sanction. Naturally, making dated and timed, regular, legible, detailed and signed clinical notes is mandatory.
How have you seen cases involving plastic surgery change over the years? Have regulations become tighter to better suit patients?
It is well known that UK society in general has become more litigious over the last 30 years and the whole field of Plastic Surgery has certainly not been immune from this trend. Unlike most other surgical specialties, plastic surgical results are immediately ‘on show’, whether of a reconstructive nature or cosmetic. This latter category is particularly at risk of litigation if expectations are not met for whatever reason.
It is therefore essential to manage expectations effectively and to screen out patients who are psychologically unsuited, or even mentally unstable. Recent government directives on Cosmetic Surgery, aimed at protecting the public in general and potential patients in particular, have improved patient access to reliable information, such as a surgeon’s professional details, numbers of specific procedures performed and his or her outcomes. Previously, the only dependable source of information had been the British Association of Aesthetic Plastic Surgeons (BAAPS) annual data survey of its individual members outcomes (this survey continues). BAAPS is thus a good touchstone for anyone contemplating cosmetic surgery and a patient’s general practitioner (GP) will also be able to provide advice on who may be reliable locally.
At consultation, patients should assure themselves that the surgeon does not appear too tired or in too much of a hurry.
It is now incumbent on cosmetic surgeons to inform GPs that their patient has been seen in consultation and of plans made, thereby giving GPs the opportunity to flag up any additional patient details that might affect the decision to operate, which should not be within 14 days of the specialist consultation (cooling off period). Additionally, it means that the GP is ‘in the loop’ should there be any postoperative problems that may require community input.
Although there is still a shortage of psychologists with the specific training and expertise to assess patients prior to planned cosmetic surgery, the tools for doing so have improved and the emphasis is on surgeons to make such a referral for preoperative evaluation, where there may be any element of doubt.
What are the ‘warning’ signs patients should look for in order to avoid falling into legal disputes?
All of these [aforementioned] measures have served to improve protection of patients (and inevitably also surgeons) contemplating and undergoing cosmetic surgery and to reduce risk.
Despite this, cases in which legal action has been taken following a plastic surgical procedure continue to rise and it is worth considering what patients should look out for in order to minimise their risk and to reduce their likelihood of becoming involved in legal action, which can be very stressful and expensive.
Finding a surgeon has already been alluded to. Cosmetic Clinics (CCs) present risk in this area as surgeons from overseas may fly in to fulfil commitments to the Clinic, sometimes at quite short notice, making it difficult for a patient to really know much, if anything, about who is going to operate on them. Similarly, the surgeon may not be around for long post-surgery. Government directives also recommend a second consultation which may not necessarily occur at CCs.
Whether the plastic surgical care is reconstructive or cosmetic, patients should always be ready to question anything about their care within reason, particularly if something seems strange or wrong.
At consultation, patients should assure themselves that the surgeon does not appear too tired or in too much of a hurry. Patients should be prepared to ask questions (at any time for whatever clinical care they are receiving) and to receive clear jargon-free explanations, backed up by written material (information sheets, etc). The best surgeons will send a customised, detailed letter summarising the consultation, including potential complications and costs. Patients should see someone else if they are not comfortable, as maximum trust in the patient-doctor relationship is key.
Most Cosmetic Surgical procedures are offered as part of a package through an Independent Hospital in a Group or through a Cosmetic Clinic/chain. It is imperative that patients check carefully what is and what is not included; facing unexpected costs fuels the likelihood of taking legal advice. The old adage ‘Buyer beware!’ is very relevant.
Whether the plastic surgical care is reconstructive or cosmetic, patients should always be ready to question anything about their care within reason, particularly if something seems strange or wrong. It may be that all is well, in which case the reassurance will be helpful; alternatively, promptly drawing attention to something that has been overlooked may avoid a significant problem altogether. The good doctor and nurse will always make time to answer such questions and, as no one (and no system) is infallible, should be grateful whenever their attention is drawn to something untoward.
In conclusion, this approach to clinical interaction by both patients and their medical and nursing carers, if carried out diligently and in good faith, should lead to a reduction in legal disputes which, whilst possibly unwelcome to the legal profession, would be greatly to society’s benefit.
Consultant Cosmetic & Reconstructive Plastic Surgeon
“I am Richard Matthews, Consultant Cosmetic, Burns, Reconstructive Plastic and Hand Surgeon and Member of The Academy of Expert Witnesses and of The Federation of Forensic & Expert Witnesses. I have over 30 years’ experience as an Expert Witness, taking Instructions from Solicitors for both Claimant and Defendant and as Single Joint Expert and I provide over 60 Reports a year for The Court covering Personal Injury (Condition & Prognosis) and Clinical Negligence (Condition & Prognosis &/or Breach of Duty of Care &/or Causation).
My company, ‘Richard Matthews Surgery Ltd’, is based at The Nuffield Health Warwickshire Hospital, Leamington Spa CV23 6RW. My Secretary, Sally, may be contacted there on 01926-436341 or at Sally.Bates@nuffieldhealth.com .“