Advice from the DermatoLAWgist

Atty. Elizabeth Amelia V. Tianco, MD, FPDS

Q:
In daily practice, we see a lot of patients coming in for cosmetic procedures. These cases are usually litigation-prone. How do we minimize the risks for such actions?

A:
More often than not, we as dermatologists may be the subject of litigation due to medical negligence. The best way for us to minimize the risk of litigation is to practice according to the standards of our specialty. If we do this, we have more than half the battle won.

In the event of litigation, the patient complainant has the burden of proving 4D’s: our duty to the patient (which must be within the standards of care of our specialty), dereliction of our duty, damage (physical damage or money loss) and proximate causation (that cause which, in the natural sequence of events, without any other intervening factor, would have caused the damage and without which the damage would not have occurred). To explain proximate causation, let us say that the dermatologist did not have the patient put on protective eye goggles during a laser treatment on the face, and the dermatologist inadvertently directed the laser light into the patient’s eye, causing blindness. The failure to have the patient put on the goggles is the cause of the injury and without which the blindness would not have occurred, for otherwise the light would have been deflected by the goggles. However, this is because there was no efficient intervening cause. What if, even before starting the laser treatment, there was a massive earthquake which caused debris to fall in the patient’s eye, causing the blindness? In this case, the dermatologist can argue that he or she had not yet completed the preparations for the procedure, including having the patient put on the protective wear. It will be difficult to say that the failure to put on the protective goggles was the proximate cause of blindness since there was an efficient intervening cause, that is, the earthquake.

The way to prove the 4 D’s is for the patient to bring in an expert witness, who will be a dermatologist with the knowledge and skill pertaining to the treatment or procedure done. If it involved a laser ablation procedure, then the expert witness should be one who has done such, and not just one who has read about it in the textbooks. Of course, no expert testimony is needed if the injury or damage sustained is such that it leaves no doubt as to the negligence of the dermatologist (resipsa loquitur, “the thing speaks for itself,” such as when the patient became blind during the laser procedure due to not having been made to use protective eyewear, and nothing else intervened that could have caused the blindness).

Don’t feel offended if a colleague testifies against you. It is the duty of all doctors to weed out the incompetent from their ranks. Besides, you can always vindicate yourself by having an expert witness who can testify that you practiced within the standards of care of our specialty.

We should have good rapport with our patient and show our sincere concern. If our patient thinks that we are just after the financial reward from doing a procedure, it will be easier for him or her to bring a case against us should something go awry.

We should neither be haughty nor arrogant. We should not taunt the angry patient with “E, di maghabla ka.” Such haughtiness will almost surely result in the patient bringing us to court, if only to teach us a lesson.

We should get a written informed and enlightened consent for the procedure to be done, and we should be the one to personally explain to the patient the benefits of any treatment or procedure, the risks, complications, side-effects, alternative treatments or procedures, and the results of no treatment. We wouldn’t want the patient to claim later that he or she did not consent to a procedure, especially when it is one for cosmetic reasons.

We should not take on more than we can comfortably take. If we accept too many procedures in one day, we may be too tired and our level of care may go down. Schedule on another day when we are more relaxed and have had a good rest.

When we don’t know how to do a certain procedure, we should refer the patient to a colleague who has the experience. We should get the patient’s permission but if we are refused and the patient insists that we do that procedure for which we have not adequately trained, we should not agree but rather decline to continue as the patient’s physician.

We should not take our patient for granted. Even the most amiable patient can be dissatisfied enough to file a civil case for damages, a criminal case for reckless imprudence leading to say, physical injuries, or an administrative case with the Professional Regulation Commission for the suspension or revocation of our medical license.

I like to reiterate over and over, take care to follow the Golden Rule: “Do unto others what you would want them to do unto you.” Let us put ourselves in the shoes of our patients. If we, as patients, wouldn’t want something done to us by our doctors, then we – as doctors – should not do it to our patients.