Risk Management

False Advertising and Misrepresentation Hamper Defense in Laser Facial Surgery Case

Digest, Summer, 1996

ALLEGATION  Unsatisfactory results from laser facial surgery due to insured’s substandard technique, lack of informed consent, false advertising, and misrepresentation.

DISPOSITION  Case settled with indemnity payment to include the cost of subsequent repair surgery.

Case Summary

After reading an enticing ad in a local newspaper that suggested “youth was just a minor surgery away,” the plaintiff, a 59-year-old woman decided it was time to have her wrinkles removed. She set up a consultation meeting with the insured ophthalmologist and was assured that the new CO₂ laser technique was extremely safe and that the results were astounding. The insured also assured the patient that she had performed this procedure many times and that all her patients had been very satisfied.

Based on these reassurances and representations in the newspaper ad that this ophthalmologist “teaches other surgeons how to perform laser facial surgery,” the patient underwent a full face CO₂ laser resurfacing. There were no apparent complications during the procedure, and the patient was discharged from the surgicenter in stable condition. Her recovery was unremarkable for the most part; however, she suffered from extreme redness when the new skin appeared, which alarmed her. The insured tried to console her, explaining that this was a normal complication and that the redness could be expected to resolve in another two to three weeks. Unfortunately, the redness continued for three months before the patient was able to adequately conceal it with skin bleaches and makeup. In addition to the redness, the patient complained that the wrinkles under her eyes were not adequately removed and that the smile lines at the corners of her mouth had been altered and now were uneven. The insured offered further surgery to correct the smile lines to the patient’s satisfaction, but the patient declined.

The next communication from the patient was a letter from her attorney stating that she was bringing legal action against the insured for damages suffered by the substandard performance of laser surgery, lack of informed consent, false advertising, and misrepresentation.

Analysis

In the absence of the misleading advertisement, this case could have been defended on the merits of the medical facts. Two oculoplastic surgeons, both experienced in CO₂ laser resurfacing, reviewed the surgery, postop care, and the overall visual results of this patient and were supportive of the insured’s surgical technique and postoperative care. They were satisfied that the redness experienced by this patient was a known and expected complication and that the change in her smile lines was an expected result of the general tightening of the facial skin and would possibly relax over time.

The difficulty in defending this case came with the discovery that the insured actually had not been involved in instructing other physicians in the CO₂ laser technique and had in fact performed only six procedures prior to the plaintiff’s. The ad had been developed by a local marketing company after a brief interview with the insured. When it was presented for her approval prior to printing, the insured questioned the propriety of claiming she was “the surgeon who teaches other surgeons” since she knew she did not instruct other surgeons in this procedure; however, the marketing representative assured her that since she was a university professor she was qualified to make this claim. The marketing representative also pointed out that an eye-catching and enticing ad could be quite effective in attracting patients.

Unfortunately, the plaintiff attorney probed into the insured’s university standing and discovered that while she was indeed an assistant clinical professor in ophthalmology, she had no affiliation with plastic surgery or dermatology, which he erroneously thought was a necessary qualification to teach and perform this procedure. Even though the plaintiff attorney was misdirected in his initial investigation into specialties, it was inevitable that with further probing he would discover that the insured did not in fact teach other surgeons this procedure. Based on the perceived inability to defend the statements made in the newspaper ad, OMIC, in conjunction with the insured, decided to settle the case for a nominal amount rather than face the probable ramifications of further probing by the plaintiff attorney.

Risk Management Principles and Commentary

If the insured had heeded her uneasiness about the wording of the ad and insisted that it be modified, she might have avoided the subsequent legal action taken against her. When publishing an ad about one’s own professional expertise, it is the physician who must decide what can and cannot be said. Stretching the truth in a misleading way can be construed as misrepresentation and may result in a high jury award if a case goes to trial. Likewise, when the stakes at trial are so high, it can be difficult to reach a reasonable settlement.

During the informed consent process, it is extremely important for the physician who performs laser resurfacing not only to fully inform the patient of the known complications, such as excessive redness, but also to be honest about one’s level of experience with this procedure. If at a later date, the patient becomes unhappy with the results, and there has been a less than accurate disclosure of the physician’s actual experience with the procedure, or an overly optimistic promise of the outcome, the case will be extremely difficult to defend.