Presence or absence of allegations led to changes in defendant outcomes. Compared with defendants without them, allegations of facial nerve injury (30% of cases with vs 63% of cases without injury; P = .048) and intraoperative negligence (52% of cases with vs 75% of cases without these allegations; P = .04) resulted in significantly lower rates of positive defendant outcomes.
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Kandinov A, Mutchnick S, Nangia V, et al. Analysis of Factors Associated With Rhytidectomy Malpractice Litigation Cases. JAMA Facial Plast Surg. 2017;19(4):255–259. doi:10.1001/jamafacial.2016.1782
What factors influence rhytidectomy malpractice litigation and determine poor defendant outcomes?
This analysis of 89 medical malpractice litigation cases involving rhytidectomy found that patient dissatisfaction with cosmetic outcome and inadequate informed consent were the most commonly cited factors in pursuing litigation. Intraoperative negligence and facial nerve injury allegations were more likely to result in poor defendant outcomes.
A comprehensive, preoperative informed consent process characterizing specific risks and outcomes is necessary to limit allegations of malpractice in rhytidectomy; however, direct patient harm is most often associated with judicial liability in rhytidectomy malpractice litigation.
This study investigates the financial burden of medical malpractice litigation associated with rhytidectomies, as well as factors that contribute to litigation and poor defendant outcomes, which can help guide physician practices.
To comprehensively evaluate rhytidectomy malpractice litigation.
Data Sources and Study Selection
Jury verdict and settlement reports related to rhytidectomy malpractice litigations were obtained using the Westlaw Next database. Use of medical malpractice in conjunction with several terms for rhytidectomy, to account for the various procedure names associated with the procedure, yielded 155 court cases. Duplicate and nonrelevant cases were removed, and 89 cases were included in the analysis and reviewed for outcomes, defendant specialty, payments, and other allegations raised in proceedings. Data were collected from November 21, 2015, to December 25, 2015. Data analysis took place from December 25, 2015, to January 20, 2016.
A total of 89 cases met our inclusion criteria. Most plaintiffs were female (81 of 88 with known sex [92%]), and patient age ranged from 40 to 76 years (median age, 56 years). Fifty-three (60%) were resolved in the defendant’s favor, while the remaining 36 cases (40%) were resolved with either a settlement or a plaintiff verdict payment. The mean payment was $1.4 million. A greater proportion of cases involving plastic surgeon defendants were resolved with payment compared with cases involving defendants with ear, nose, and throat specialty (15 [36%] vs 4 [24%]). The most common allegations raised in litigation were intraoperative negligence (61 [69%]), poor cosmesis or disfigurement (57 [64%]), inadequate informed consent (30 [34%]), additional procedures required (14 [16%]), postoperative negligence (12 [14%]), and facial nerve injury (10 [11%]). Six cases (7%) involved alleged negligence surrounding a “lifestyle-lift” procedure, which tightens or oversews the superficial muscular aponeurosis system layer.
Conclusions and Relevance
In this study, although most cases of rhytidectomy malpractice litigation were resolved in the defendant’s favor, cases resulting in payments created substantial financial burden for the defendants. Common factors cited by plaintiffs for pursuing litigation included dissatisfaction with cosmetic outcomes and perceived deficits in informed consent. These factors reinforce the importance of a comprehensive, preoperative informed consent process in which the specific potential risks and outcomes are presented by the surgeon to the patient to limit or avoid postsurgical allegations. Intraoperative negligence and facial nerve injury were significantly more likely to result in poor defendant outcomes.
Level of Evidence
Medical malpractice litigation (MML) is ingrained in modern medical practice.1 Despite ongoing reforms and the establishment of organizations to monitor health care quality,2,3 MML continues to have a profound effect on the US health care system, costing more than $55 billion annually4 and involving 75% to 99% of all physicians over their career.5 In addition, physician concerns about MML lead to increased burnout rates6 and defensive medicine,7 the practice of performing services of little to no medical value for the purpose of patient assurance8,9 or avoidance of high-risk situations. Such practice leads to unnecessary diagnostics, procedures, and hospitalizations1 with associated complications.
In today’s litigious environment, the factors affecting judicial outcomes are increasingly important to understand and are the subject of study in several medical fields.10-15 Findings from such studies are particularly relevant in elective surgery. Recent investigations demonstrate that most claims in plastic surgery result from a surgeon’s lack of expertise in the procedure,16 poor cosmesis and excessive scarring,16,17 and a perceived lack of informed consent16,17 (ie, informing patients and managing their expectations).18,19 Studies also suggest that the quality of medical records and informed consent weigh heavily in judicial decisions to determine claims against plastic surgeons.8,20 Rhytidectomy accounts for a significant portion of all cosmetic procedures and thus is more likely to be involved in MML.21,22
By analyzing rhytidectomy claims, surgeons performing this procedure can be better educated on strategies to prevent litigation and to develop practices more likely to result in positive judiciary outcomes. The objective of this study was to perform a focused analysis of the outcomes, monetary effects, and allegations raised in MML proceedings involving rhytidectomy.
Jury verdict and settlement reports used in this analysis were obtained from Westlaw Next (Thomson Reuters), a publicly available legal database containing state and federal case laws, public records, and other related information from more than 40 000 databases. Westlaw and Westlaw Next have been used repeatedly to examine and analyze MML.6,23-25
We searched the database for the term medical malpractice in conjunction with several terms for rhytidectomy, including rhytidectomy, platysmaplasty, platysmoplasty, chin lift, chinlift, necklift, neck lift, facelift, face lift, lifestyle lift, thread lift, MACS lift, and Quick lift, to account for the various procedure names associated with the procedure. From this search, 155 court cases were reported. We removed duplicate and nonrelevant cases and included 89 cases from 1985 to 2015 in our analysis. For each of the 89 cases, we recorded the procedure, alleged cause of malpractice, case outcome, award value, and specialty of the defendant.
Information about whether the facial plastic surgeon involved in the case was trained in head and neck surgery (or ear, nose, and throat specialty) or in plastic surgery was unavailable in the database. However, for 62 of the 89 cases, we found the specialty information on individual practice websites and physician biographies online. We conducted statistical analysis using Fisher exact test for categorical variables to compare the presence of a legal allegation against a physician with the outcome favorability for that physician, and Mann-Whitney tests were used where appropriate. We analyzed state and federal court records containing jury verdicts and settlements for further detail.
Data were collected from November 21, 2015, to December 25, 2015. Data analysis took place from December 25, 2015, to January 20, 2016. Because all the information used in the study was obtained from publicly available court records, no confidential or protected health records were encountered. As such, this analysis required no approval from an institutional review board.
A total of 89 cases met our inclusion criteria. Most plaintiffs were female (81 of 88 with known sex [92%]), and patient age ranged from 40 to 76 years (median age, 56 years). Fifty-three cases (60%) were resolved in favor of the defendant, while the remaining 36 cases (40%) were resolved with payment (jury settlement [6%] or plaintiff verdict [35%]) of a mean $1.4 million (median payment, $0.5 million). Of the cases resolved with payment, 5 (14%) were by jury settlement with a mean payment of $1 362 716, and 31 (86%) were by plaintiff verdict with a mean payment of $1 635 000.
The surgeon specialties found for 62 cases included plastics (42 cases [68%]); ear, nose, and throat (17 [27%]), and oculoplastics (2 [3%]). Of these 62 cases, 22 (35%) resulted in a mean payment of $681 643 (median payment, $412 500). The mean payment amount and payment frequency (payments include both settlements and plaintiff outcomes) varied by specialty: for plastic surgeons, 15 payments of 42 cases (36%) with a mean of $662 007; for ear, nose, and throat specialists, 4 payments of 17 cases (24%) with a mean of $288 974; and for oculoplastic surgeons, 2 payments of 2 cases (100%) with a mean of $1 705 075.
The most common plaintiff allegations were intraoperative negligence (61 [69%]), poor cosmesis or disfigurement (57 [64%]), inadequate informed consent (30 [34%]), additional procedures required (14 [16%]), postoperative negligence (12 [14%]), and facial nerve injury (10 [11%]). Other cited factors in pursuing litigation were patient dissatisfaction with postoperative appearance (9 [10%]), pain (8 [9%]), hematoma (5 [6%]), numbness (5 [6%]), death (4 [5%]), and infection (3 [3%]). Only 2 allegations—facial nerve injury (P = .048) and intraoperative negligence (P = .04)—had a significantly higher likelihood of being resolved with payment (Figure and Table 1).
Thirty-six cases (40%) involved combination procedures in which rhytidectomy was only 1 component. Six cases (7%) involved negligence surrounding “lifestyle-lift,” a procedure that tightens or oversews the superficial muscular aponeurosis system layer (SMAS), and all but 1 of these cases resolved in favor of the defendant (Table 2).
Rhytidectomy is the sixth most common cosmetic procedure in the United States, with an annual incidence of more than 120 000 procedures.26 A previous analysis27 of MML related to procedures listed on the website of the American Academy of Facial Plastic and Reconstructive Surgery (AAFPRS) noted that alleged deficits in informed consent played a significant role in these litigations overall. Using rhytidectomy as a search term, that earlier study (which also employed the Westlaw database) examined 13 cases related to rhytidectomy; it also analyzed cases for other procedures, including blepharoplasty (n = 39) and rhinoplasty (n = 24). This previous analysis is now 5 years old and was performed using only the terms found on the AAFPRS website in 2012. To our knowledge, our current study is broader, capturing a far greater number of cases (13 vs 89) and more recent cases (2012 vs 2015). Furthermore, our study included considerations specific to rhytidectomy.
Most of the cases in this study (60%) were settled in the defendant’s favor. This judgment is likely the result of the strict criteria, such as duty, breach of duty, harm, and direct causation, that judges insist be met for MML to end in payment.28 Cases citing facial nerve injury were significantly less likely to receive outcomes in the defendant’s favor (Figure). These outcomes contrast with those of other allegations, such as inadequate informed consent, additional procedures required, patient dissatisfaction with postoperative appearance, and postoperative negligence. Such allegations did not appear to increase the likelihood of payment (Table 1), although this outcome may have been because of our inability to detect such statistical differences in some cases.
These differences in judicial decisions suggest that mistakes made in the operating room tend to end in poor defendant outcomes compared with complaints that develop later on, likely because of the clear causation between procedural actions and patient harm, which (along with duty and breach of duty) are 2 of the strongest factors in determining medical malpractice liability and in combating physician negligence.29 Surgical techniques and practices, therefore, serve as the most significant modifiable factors in avoiding physician liability, and surgeons should recognize the significantly poorer judicial outcomes of cases alleging facial nerve injury or intraoperative negligence.
Intraoperative negligence, the largest contributor to rhytidectomy allegations at 69%, was particularly relevant because of its significant correlation with poor defendant outcomes. Although allegations of poor cosmesis or disfigurement, inadequate informed consent, and patient dissatisfaction with postoperative appearance did not result in significant detriments to defendant outcomes (Table 1), their high incidence stresses to surgeons the importance of discussing specific potential complications with their patients. Obtaining proper informed consent, for example, requires disclosure of any information that is significant to a patient’s decision to undergo a procedure,6 yet most informed consent disputes are over undisclosed risks.29 This situation suggests a lack of open, pragmatic, preoperative discussions that enable the surgeon to manage the patient’s expectations, emphasize the procedure’s risks and limitations, and explain cosmetic outcomes. such as scarring or disfigurement. Therefore, 1 strategy likely to limit the number of rhytidectomy-associated allegations is to institute a comprehensive, presurgical informed consent presentation for the patient that explicitly details all of the risks and outcomes of a procedure, including “worst-case” cosmetic outcomes (such as range of scarring) and typical results.18
Characterization of the factors that determine legal responsibility is valuable in educating practitioners about the evolving medicolegal landscape, but there are several potential limitations to this analysis. First, not all of the cases we examined may have progressed far enough before reaching an out-of-court settlement to be included in public court records, such as in the Westlaw database. Rules for inclusion in public records differ by jurisdiction. Consequently, we likely underestimated cases that were settled out of court before proceedings were initiated.
Second, there was significant heterogeneity in the collected data available in published court records. Some included great detail about the allegations and proceedings, but others offered simplified summary statements. This heterogeneity resulted in inconsistencies in the amount of data available per case and caused the sample sizes for certain aspects of the analysis, such as specialty, to be smaller than the total sample size. Nevertheless, Westlaw has been used in multiple malpractice analyses,6,23-25 and our analysis has identified certain variables more likely to be associated with unfavorable outcomes for physicians in rhytidectomy litigation. Thus, our study can be used to positively benefit physician education in the future.
The expanding field of facial plastic surgery now includes a variety of outpatient surgeries performed by plastic surgeons; facial plastic surgeons; ear, nose, and throat specialists; and ophthalmology-trained surgeons, many of whom are likely to encounter MML associated with rhytidectomy. Although most MMLs in this field were resolved in the defendant’s favor, the cases resulting in payments (averaging $1.4 million) harbored severe financial burdens for the defendants. Common factors cited by plaintiffs for pursuing litigation included dissatisfaction with postoperative appearance, poor cosmesis/disfigurement, and inadequate informed consent. These factors reinforce the importance of a comprehensive, preoperative informed consent process, in which specific potential risks and outcomes are discussed to limit postsurgery allegations. Intraoperative negligence and facial nerve injury were significantly more likely to result in poor defendant outcomes, representing the most significant modifiable factors in judicial liability risk because of their direct association with patient harm.
Corresponding Author: Aron Kandinov, BS, Department of Otolaryngology–Head and Neck Surgery, Wayne State University School of Medicine, 4201 St Antoine, 5E-UHC, Detroit, MI 48201 (firstname.lastname@example.org).
Accepted for Publication: September 29, 2016.
Published Online: February 9, 2017. doi:10.1001/jamafacial.2016.1782
Author Contributions: Drs Mutchnik and Svider had full access to all of the data in the study and take responsibility for the integrity of the data and the accuracy of the data analysis.
Study concept and design: Mutchnick, Svider, Zuliani, Shkoukani, Carron.
Acquisition, analysis, or interpretation of data: Kandinov, Mutchnick, Nangia, Svider, Carron.
Drafting of the manuscript: Kandinov, Mutchnick, Nangia, Svider.
Critical revision of the manuscript for important intellectual content: Kandinov, Svider, Zuliani, Shkoukani, Carron.
Statistical analysis: Mutchnick.
Administrative, technical, or material support: Zuliani, Carron.
Study supervision: Svider.
Conflict of Interest Disclosures: None reported.
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