Most malpractice suits have one thing in common: the personality factor
Mark Gorney, M.D., is a Napa, Calif., plastic surgeon who is intimately familiar with medical malpractice issues — in part because, in nearly 40 years of practicing plastic and cosmetic surgery, he has never been the subject of a malpractice suit.
One of the co-founders, past medical director, and currently senior consultant in plastic surgery for The Doctors Company, the leading physician-owned malpractice insurer in the U.S., Dr. Gorney has, for decades, examined and disseminated critical issues that influence a surgeon's vulnerability to malpractice suits.
Not least of these, he says, is the legal mentality in the U.S. "America's patients are far and away the most litigious patients in the world," Dr. Gorney tells Cosmetic Surgery Times . This is a characteristic he does not see changing for the better in the near future, so the onus is on physicians to protect themselves by effectively managing those factors they can control. Often, however, surgeons inadvertently increase their chances of being sued.
HE SAID, SHE SAID One of the primary elements that doctors can control pertains to personality — the patients' and their own — and effective communication. Dr. Gorney has studied and discussed these correlations extensively.
"Well over half of [malpractice] claims are preventable," he states in one publication (Facial Plast Surg. 2002), "as most are based on failures of communication and/or patient selection criteria." Dr. Gorney says that principles such as standard of care, warranty and disclosure "and the ability to communicate clearly and effectively" with patients are paramount to maximizing "the possibility of remaining a claims-free surgeon."
Some of these elements, such as sufficient informed consents and disclosures, are easier to identify and ensure than is perhaps the most important element: personality. "As I look at some of my high-profile colleagues," he notes in a recent editorial, "I am struck by certain personality characteristics that the most successful among them have in common: that odd combination of charm, sensitivity, and warmth often referred to as bedside manner by the public. (Plast Reconstr Surg. 2009)." This elusive quality — developing a rapport with the patient — is any physician's best protection from eventually being sued by that patient.
The inability or failure to build this rapport leaves the practitioner vulnerable, Dr. Gorney says in his editorial, and often he finds that, when a patient sues, "The problem is not rooted in the physical results but rather in the interplay of personalities or the chemistry between surgeon and patient. Perhaps if there had been greater candor or better rapport, the surgeon might have sensed that this was a dubious candidate whose expectations were, in fact, unrealistic to begin with."
Because communication (verbal and nonverbal) and compatibility are key deterrents of legal actions, Dr. Gorney says that cosmetic surgeons, by nature of their own personalities, often bring added liability with them to the table. In his editorial, he states that, while there may be no "solid basis in fact, there is little question that ego problems among those of us who have undertaken to convert the homely into the beautiful often play a seminal role in the typical interpersonal relationship conflicts."
This creates an unfortunate synergy with which practicing physicians may have to contend, the results of which Dr. Gorney sees often in his work with The Doctors Company. Plastic and cosmetic surgeons are frequently already at high risk because of their often egocentric personalities. Combine that with the very natures of their patients, whose own egos or tendencies towards critical evaluation impel them to seek elective aesthetic surgery in the first place, and the result can be a volatile mix. Exacerbate the situation with an economy that may induce physicians to perform procedures they might not normally, and to accept patients whom they would avoid under ideal circumstances.
BE AWARE, BE PROACTIVE Surgeons can reduce the inherent risks, however, Dr. Gorney notes, and that starts with awareness.
Primary, is an understanding of how personality traits that drew a physician toward aesthetic practice can also work against him or her. Learn to recognize behaviors, attitudes and gestures that may alienate patients or could appear arrogant. Be conscientious and humble in efforts to modify those behaviors, but also recognize that no one can please all people all the time. Patient awareness is as vital as self-awareness.
Dr. Gorney says that to minimize the risk of a lawsuit, the "identification and avoidance of the patient clearly unsuitable for elective surgery," is critical. This is true more so now, in the current economic downturn, than ever.
"No matter how bad the economy is, or how much you need the money, do not, I repeat it, do not take on a patient that gives you bad vibes." Trust your gut, in other words, and don't bow to the pressure (internally from yourself or externally from the patient) to take on a patient you typically would not in more robust times.
TAKE HOME MESSAGE Dr. Gorney stresses that cosmetic surgeons need to keep in the front of their minds that, "They are the only doctors in practice who, instead of accepting a sick patient to make him/her well, mostly take on patients who are well to make them better. That is a real gamble and unfortunately the outcome is mostly in the eye of the beholder. That is the edge of the precipice."
In the end, your own diligence, insight and discretion can keep you in the surgical suite and out of the courtroom. Know yourself. Know your patients. And if the shoe pinches, don't try to wear it.
Gorney, M. The personality factor in medical liability. Plast Reconstr Surg. 2009;123:417-418.
Gorney, M. Claims prevention for the aesthetic surgeon: preparing for the less-than-perfect outcome. Facial Plast Surg. 2002;18:135-142.
Dr. Gorney is a senior consultant in plastic surgery for The Doctors Company ( http://www.thedoctors.com/), which insures the largest number of plastic surgeons in the U.S.