Taking simple steps can save providers big legal headaches and avoid exposure to lawsuits.
There are two main components to avoiding med spa liability. The first is the provider’s pre-injury conduct, including proper consenting of a patient. The second is post-injury action. This article focuses on the latter.
Part of my practice, as a cosmetic procedure injury attorney, involves advising med spa owners and supervising physicians on how to “avoid liability.” When opening a cosmetic practice, everyone always wants to know: how do I not get sued?
Although not all allegations by a patient prove to be legitimate and medical malpractice investigations end well for many health care providers, one thing is true: once a medical malpractice investigation ensues, the provider suffers many sleepless nights.
To avoid the headache of a medical malpractice investigation and legal liability, providers should understand some simple truths about injuries that occur in a medical setting:
- Even the best practitioners make mistakes.
- Not every injury results in a medical malpractice claim/ lawsuit.
- The difference between providers that get sued and those that do not is how they handle the situation post-incident.
- Stonewalling a patient after an adverse event occurs does not avoid exposure to a lawsuit.
I have talked to many injured patients over the years of my legal practice who were seeking to pursue medical malpractice actions against their providers. Their adverse events ranged in severity and permanency. The less serious claims included patients that suffered dissatisfying results with injury-like characteristics. For example, I had a client whose dermatologist injected her under-eye with botulinum toxin (Botox, Dysport, etc.) inexpertly. He injected only one eye, leaving the other untouched intentionally. The patient had multiple issues. First, the injection left her with a giant bruise under her eye which stayed there for days – hardly an injury but very unsightly. Second and more problematic, the eye did not close properly after the toxin took effect. She had trouble protecting her eye from the Florida sunlight (when she squinted her eye did not close) and dust particles. This also caused an undesirable appearance (one eye remained open while the other closed naturally. This was not the beautiful result she wanted to achieve. But even though this type of injury is less serious because the botulinum toxin eventually dissolved, it was nonetheless a traumatic experience for the patient. The photos looked awful. When she returned to complain about her problems to the same physician, he blew her off telling her to put on some make-up and stop whining. She sought my advice, and we initiated a medical malpractice investigation. Had the physician properly handled her concerns appropriately, she would not have been interested in pursuing legal action against him.
On the other end of the spectrum are patients with permanent and catastrophic injuries. A client that comes immediately to mind is a woman in her mid-30s who lost vision in her eye after undergoing under-eye fillers. Her blindness is permanent. She too sought legal action against her provider, in large part because the nurse practitioner that injected her stopped following up with her after the incident occurred.
These two examples are bookends of a range of injuries and incidents that can occur at med spas. Each affected patient will have a choice to make: to sue or not to sue.
So why do patients sue?
The first thing that each one of my cosmetic procedure injury clients tell me, without fail, is: “After the injury occurred my provider completely stonewalled me, he/she denied that this even happened.” Essentially, the providers failed to react appropriately to the situation at hand. Adverse events happen in medical practices, this is just a fact of life.
Many times, and to their own detriment, after the patient makes an allegation of an injury the practitioner stops communicating with his or her patient. I have seen this so often. The patient is left to deal with the injury on their own which is a very frustrating feeling. Eventually, this frustration turns into a medical malpractice claim.
On the other hand, patients appreciate the genuine care and interest extended by providers post-injury. Providers should understand that they can be compassionate and care for their patients’ injuries without admitting fault. Fault, in many cases, is not immediately clear and it is not advisable to discuss fault at all with the patient without seeking the consultation of an attorney. Moreover, your medical malpractice insurance policy may prohibit you from admitting fault.
Under Florida law, any statements made to an injured party expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person is inadmissible in a civil trial. This means that any message or statement made to a patient by a provider acknowledging their suffering will not be used against the practitioner in a medical malpractice trial. It’s okay to sympathize with your patients. But it is important to distinguish remarks of sympathy with admissions of fault.
A statement of fault is admissible in a civil trial to prove liability and can get a provider into hot water. However, post-injury follow-up and admission of fault are two separate matters.
What should you do if a patient claims they have been injured?
- Act with genuine care and interest for your patient’s well-being.
- Have the supervising physician meet and speak directly with the patient immediately.
- Address the patient’s concerns directly in a competent manner.
- Ask the patient if there is anything that you can do for them. Listen.
- Consult with an attorney immediately to discuss risk management.
Our firm has been successful in preventing medical malpractice claims in situations where patients suggested medical negligence. Through our guidance and the providers’ quick and intelligent action in response to an adverse event, I am proud to say that not only were our provider-clients unaffected by these incidents, but their patients were happy at how the incidents were handled. This is extremely important because although liability is a major concern for a medical practice, business reputation is just as significant. Therefore, doing the right thing immediately after a mishap occurs will not only avoid liability exposure but also prevent negative comments and reviews that can undoubtedly affect the business.
An adverse event/incident plan should be part of every medical practice. You and your staff should be trained and prepared on how to act in case of an injury at your practice. Our firm can help you with this aspect of your med spa practice. If you would like to talk to our experienced attorney about your medical practice and how to avoid liability exposure, call LOU LAW today at 855.554-6534 or get in touch through our contact form.