Do Plastic Surgery Residents Get Sued? An Analysis of Malpractice Lawsuits (2024)

Associated Data

Supplementary Materials

Background:

INTRODUCTION

Physicians spend on average nearly 11% of their 40-year careers with an open, unresolved malpractice claim.¹ Plastic and reconstructive surgery in particular carries a high risk for malpractice litigation due to the multitude and intricate nature of its procedures, paired with the goal of achieving aesthetic results. The United States medical liability system costs $55.6 billion, representing 2.4% of total healthcare spending, with plastic surgery accounting for 3.3% of reported claims and 3.2% of paid claims.² In a nationwide study that stratified malpractice risk according to physician specialty, it was found that plastic surgery had the fifth highest percentage of physicians facing a new malpractice claim annually. This means that among all specialties, plastic surgeons had the fifth highest percentage of physicians facing a malpractice claim within their respective field, only behind orthopedic surgery, general surgery, cardiovascular surgery, and neurosurgery.

The doctrine of respondeat superior or “let the master answer” has led to the assumption that resident physicians cannot face legal repercussions due to medical malpractice since their supervisor is responsible.³ However, while attending physicians are legally accountable for trainees under their supervision, no law prevents residents from being named in malpractice lawsuits. This may in turn create an enduring burden early in their career.⁴ Research analyzing the personal consequences of malpractice lawsuits on American surgeons demonstrated that suits were strongly related to burnout, depression, and recent thoughts of suicide among surgeons; surgeons involved in malpractice suits also reported less career satisfaction and were less likely to recommend a surgical career to their children.⁵

As such, medical malpractice litigation against trainees is infrequently examined and to the best of our knowledge has not been reported among plastic and reconstructive surgery trainees. A study by Zhao et al⁶ showed that 4% of all malpractice cases involved residents; when looking at cases involving only residents, 32% were filed against a surgical specialty, representing the largest portion of these malpractice cases. There is a paucity of data on the percentage of plastic surgery trainees who face malpractice claims, the amount of those claims, and the financial burden associated with it.

To our knowledge, no study has evaluated malpractice cases among plastic surgery residents and quantified the financial impact on their career. Our study aimed to analyze the events that precipitated litigation to better understand how to prevent future occurrence, improve malpractice education in residency programs, decrease this burden on future plastic surgeons, and improve patient satisfaction and outcomes.

METHODS

Using the LexisNexis legal database, jury verdicts and settlements from all appellate state and federal cases between February 1988 and 2020 were queried. A nonrepresentative sample of over 300 cases was compiled with our search criteria; multiple key word searches were used to ensure that any plastic and reconstructive surgery case that mentioned a trainee, resident or fellow was included. Each case was manually reviewed by two authors (A.R.G. and S.K.J.) to determine which cases directly involved trainees (trainee mentioned in a case as a defendant or codefendant). Those cases that did not meet this criterion were excluded. There was 100% agreement among authors.

Data collected from these cases included plaintiff and patient demographics, case characteristics, allegations, and outcomes. Personal information was not included or collected. Cases were categorized as procedure-related or due to clinical injury. Allegations were classified as delay in evaluation, incorrect diagnosis or treatment, procedural error, lack of informed consent, lack of knowledge of resident involvement, failure to supervise trainee, trainee inexperience, prolonged operative time, and lack of follow-up care. Allegations were nonexclusive (cases may have had multiple allegations).

RESULTS

During a 32-year period, a total of 21 malpractice cases involving plastic surgery trainees were identified with a total of 57 allegations. (See table, Supplemental Digital Content 1, which displays allegations (n = 21) with case demographics and summaries, http://links.lww.com/PRSGO/C317.) Of these 21 identified cases that involved trainees, 14 (66.7%) involved claims in which a trainee was directly named as a defendant. A total of 18 (85.7%) cases were due to procedural-related adverse outcomes, while three (14.3%) cases were associated with clinical or diagnostic-related adverse outcomes. A total of 13 (61.2%) patients were women. Trainee experience was recorded for six cases for which one named a junior trainee (PGY-2) and five named senior trainees (PGY-5 or PGY-6). Eleven states had reported cases, with New York (n = 4), Pennsylvania (n = 3), and Massachusetts (n = 3) having the highest number.

Precipitating medical events of lawsuits included four cases each of poor scarring and infection, three cases of hypoxic brain injury, and two cases each of muscle injury, iatrogenic error, asymmetric breasts, and hernia. There was also one case each of breast necrosis, posttraumatic stress disorder, amputation, and subsequent death. Of the procedure-related cases, five (27.8%) occurred when the trainee was the lead surgeon. Allegations raised by plaintiffs included lack of informed consent of procedure complications (11, 52.4%), procedural error (11, 52.4%), failure to supervise a trainee (11, 52.4%), inexperience of the trainee (eight, 38.1%), incorrect diagnosis or treatment (five, 23.8%), a delay in evaluation (three, 14.3%), lack of informed consent of resident being involved (three, 14.3%), lack of follow-up care (three, 14.3%), and prolonged operative time (one, 4.8%) (Fig. ​(Fig.11).

Among all 57 allegations, lack of informed consent of procedure complications was the most common allegation to be raised, representing 21% of total claims. Procedural error and failure to supervise a trainee each represented 19.3% of allegations. Inexperience of the trainee represented 14% of total allegations, while incorrect diagnosis or treatment represented 8.8%. A delay in evaluation, lack of informed consent of resident being involved, and lack of follow-up care each represented 5.3% of cases. Finally, prolonged operative time represented 1.7% of total allegations raised.

The median time from injury to lawsuit resolution was 3.8 years [interquartile range (IQR), 3–5 years]. Verdicts were ruled in favor of the defense in eight (38.1%) cases and for the plaintiff in six (28.6%) cases. A settlement was made in seven (33.3%) cases. The median payout for plaintiff-won cases was $5,100,000 (IQR, $1,530,000–$17,500,000), and the median settlement was $2,500,000 (IQR, $262,500–$4,410,000) (Table ​(Table11).

DISCUSSION

Malpractice litigation is a reality in the careers of many physicians, including during their residency and training. Physicians in surgical specialties have the highest risk of malpractice litigation compared with other fields.⁷ Specifically, plastic surgeons have a 15% chance per year of being sued.² Although our analysis could not record these data, a previous study examining malpractice litigation in plastic surgery using the Westlaw database showed that most plastic surgeons accused of malpractice worked in a private setting and were board certified.⁸ Similar to our results, the majority of cases were successfully defended by surgeons and the preponderance of suits stemmed from breast surgery and reconstruction, facial cosmetics, and abdominoplasty. This study identified resident involvement in only 3% of cases.

While malpractice litigation serves to potentially protect patients, it may also impact care and healthcare costs through the practice of defensive medicine. Previous studies have demonstrated that physician trainees, in general, are named as defendants in 30% of all malpractice lawsuits, with cases related to surgical subspecialties accounting for 31% of total malpractice claims.⁹ Furthermore, the recurrence risk of malpractice cases among physicians is associated with the number of previous paid claims. In a study by Studdert et al,¹⁰ the risk of malpractice recurrence was double among plastic surgeons compared with internists and three times compared with psychiatrists. Thus, it is crucial for residents to understand the burden associated with malpractice cases and the ramification on their future careers.

Our study used the LexisNexis legal database to query and identify all appellate state and federal malpractice cases that involved plastic and reconstructive surgery trainees (residents and fellows). The data show that a trainee may be named a defendant at any time on their training continuum (both junior and senior trainees) and highlight not only the costly multimillion dollar payouts required by the defendants in many cases, but also the extensive multiyear duration from the alleged incident to case closure or settlement. The median plaintiff payout for plaintiff-won cases was $5,100,000 in our study, which is contrasted from the literature that reports a median indemnity payment of under $100,000 for plastic surgery malpractice indemnity payments. However, in another study examining malpractice litigation and expert witnesses in plastic surgery, the mean plaintiff award was $1,036,469.¹¹ Nonetheless, these data points are for all plastic surgery malpractice cases, not just those that have named trainees as defendants and not limited only to state and federal cases.⁷

Of the 21 cases identified in the search, the most common allegations included procedural error, lack of informed consent, failure to supervise trainees, and trainee inexperience. For allegations of procedural error, a trainee was the primary surgeon during the procedure in almost half the lawsuits. Similarly, for allegations of inexperience, the defendant trainee was the primary surgeon in half the claims. This highlights how, although residents may be deeply involved in patient care, the nature of their schedules and their lack of comprehensive clinical and communication experiences makes this risk for malpractice and litigation especially relevant. For example, residents constantly rotate throughout different services and hospitals and oftentimes cannot maintain long-term patient relationships. Residents may find it difficult to ask for help when needed or even disagree with an operative plan. These points are particularly salient for plastic surgery due to the robust and broad range of procedures and skills required for positive outcomes, even with supervision. Of note, New York and Pennsylvania were the states with the highest number of cases identified in our study and are both one of a handful of states that do not have mandated caps on economic and noneconomic damages from tort reform.

Although the accusations varied, miscommunication appeared to be the underlying issue among the majority of allegations. Of the 21 cases identified in this study, 81% were related to communication breakdowns or had a component of miscommunication between patients and their providers. Allegations related to communication included lack of informed consent, lack knowledge of resident involvement, failure to supervise the trainee, and lack of follow-up care. Although the verdict was in favor of the defense for the majority of these cases, these instances could have been prevented with proper informed consent, enhanced communication with the use of translators when necessary, and timely follow-up. This highlights the importance of effective communication skills and can be used to guide the patient-facing aspects of plastic surgery training. Our data suggest that the enhancement or development of malpractice educational programs during plastic and reconstructive surgery residencies should emphasize the importance of informed consent, documentation, timely follow-up care and evaluation, and careful attending supervision. A study by Kim et al suggests that core-informed consent outcomes (eg, capacity, voluntariness, and decision-making) and emotional factors (eg, anxiety) are usually not assessed when evaluating informed consent research involving surgical procedures. Residents may benefit from utilizing methods that address patients’ beliefs and decisions by eliciting in patients’ own words and reasoning around processing informed consent content.¹² Thus, informed consent should not only satisfy the legal obligations of the hospital or institution, but also be a conversation between provider and patient that allows for mutual understanding.

Relatedly, a national study examining plastic surgery malpractice claims over a 40-year period determined that maintaining excellent communication among patients with shared decision-making, as well as maintaining complete, unaltered medical records and proactively taking care of postoperative complications were best practices to avoid litigation.² Other studies and subspecialties have emphasized how communication breakdowns contribute to malpractice lawsuits, supporting that positive physician-patient relationships are key to deterring litigation.^13,14 In a study involving malpractice litigations related to ophthalmology trainees, communication discordance was also an underlying issue among the majority of their allegations.¹⁴ Furthermore, a study from JAMA analyzing medical malpractice lawsuits among surgical residents in the United States showed that communication not only between physician and patient, but also between residents and attending physicians, as well as residents and staff, is key. In this study, lapses in communication between caregivers/providers were noted in 10% of lawsuits.⁴

Additionally, our study highlights the importance of residents’ education with regard to their legal knowledge. Although dependent on the program, institution, and location, residents do have resources available to them for malpractice education and protection. However, literature has shown that residents are often unaware of such.⁶ At a single institution, 75% of residents surveyed were unaware of resources available to them in case of litigation. Similarly, almost 70% judged their self-perceived medico-legal knowledge as “poor” or “terrible.” However, almost 100% believed that a medico-legal curriculum is important to their training. The need to decrease the possible burden of malpractice litigation is especially important for surgical trainees, including plastic surgery. This is critical as malpractice exacerbates the already well-known incidence of surgeon burnout and may also beset a resident in a more conspicuous and concrete manner as malpractice lawsuits become a permanent part of the professional record. In some states, it is required that lawsuits be reported to state medical boards, which can delay licensure and the ability to start practicing in a timely manner. Each time one applies for hospital privileges or signs with an insurance company, it is required to provide a full description of any involvement in malpractice suits. This is a burdensome duty to take on for any physician, especially one starting in practice.

While there is a large education gap in graduate medical training, there is, fortunately, nationwide protection for residents named in malpractice lawsuits. The Accreditation Council for Graduate Medical Education mandates that all residency programs provide medical liability coverage for all residents and fellows.¹⁵ More specifically, programs are required to provide occurrence coverage, which covers all claims that arise from the policy period regardless of when the claim is filed. This is advantageous to claims-made coverage, the other major type of medical liability insurance available, which only covers claims actually filled during the policy period. If a resident is sued, malpractice coverage will likely cover most of the claim. However, residents are responsible for costs greater than that of their malpractice coverage, and the Accreditation Council for Graduate Medical Education does not require a set minimum amount of resident liability coverage.¹⁵

To prevent future suits, residents should provide the best quality of care they can, stay up to date with current practice guidelines, establish strong professional relationships with patients, apologize for mistakes when appropriate, follow-up with laboratory and radiology results that are returned after a patient has already left, document detailed and complete notes, provide proper informed consent, deliver good sign-outs and hand-offs, and ask for help when needed.¹⁵ Furthermore, appropriate patient selection with proper faculty supervision at all stages is critical, especially in resident-operated clinics where maximizing patient safety and enhancing education is particularly pertinent. Relatedly, in this setting, a planned discussion before the surgery with the entire team is paramount. Although medico-legal training is somewhat sparse in most graduate medical education programs, some institutions have created cultures and implemented curricula that have demonstrated success in decreasing the rate of malpractice lawsuits. At the University of Michigan, emphasizing to trainees to acknowledge their own mistakes and to notify the patient early has decreased malpractice cases.¹⁶ At New York University, surgical trainees take part in a professionalism seminar that consists of discussions regarding why malpractice claims are filed, the legal steps involved, how it impacts residents, detailed reviews of certain claims, strategies to avoid litigation, and what to do if you are sued.¹⁷ The institution demonstrated improvement in resident understanding of the processes surrounding medical malpractice claims after partaking in this seminar. Studies have also shown that simulation, like mock depositions, has improved trainee medico-legal knowledge.¹⁸ At Denver Health Medical Center, emergency medicine residents spent 1 week at a medical liability insurance company and were immersed in the medical malpractice setting; they reviewed multiple malpractice claims and sat in on settlement discussions.¹⁹ Although the literature does not demonstrate that there is a best method for delivering medico-legal knowledge to residents, an approach that combines multiple modalities including seminars and simulations, paired with creating a professional culture that values open discussion, would likely be most successful.

Several factors limit our study including the fact that most malpractice lawsuits are settled or resolved before they reach the judicial system, meaning these instances are not properly documented or readily available to the public. Additionally, our use of the LexisNexis legal database only included cases tried at the state and federal levels. This excludes any cases that were settled outside of court, handled by third-party arbitrators, settled at the district court level, or not tried at the state or federal level. These factors limit the generalizability of our data; however, they still provide important lessons to mitigate malpractice risk for future trainees. Furthermore, because cases from the LexisNexis database do not require complete information to be published, accessible information among each case varied in availability, including demographic details, awards, and other legal, medical, and outcome characteristics. Medical documents were not available, and thus, clinical information could not be verified. Finally, as this information becomes more readily available in the future, we would like to analyze the ever-changing pressures and dynamics to have members of a surgical team testify against each other, including residents, to minimize expert witness costs and benefit particular members of the team.

CONCLUSIONS

Knowing and understanding the statistics related to malpractice claims against plastic surgery trainees will prepare trainees for possible future medical malpractice litigation and may consequently help mitigate litigation risk by developing best practices. Procedural error, improper informed consent, improper trainee supervision, and resident inexperience were the most common allegations proposed by patients in cases involving plastic surgery trainees. These factors may lead to an enduring financial and psychological burden early on in a physician’s career, as well as poor health outcomes. Highlighting these issues during medical education may decrease physician malpractice risk, lower the incidence of burnout, and ultimately improve patient satisfaction and outcomes.

Supplementary Material

Footnotes

REFERENCES