Enhance Your Practice Podcast
Enhance Your Practice Podcast
S14 E66 - Understanding the Legal Risks in Plastic Surgery
Get ready to unearth the realities of plastic surgery and medical malpractice. We promise a deep dive into a field fraught with potential pitfalls, as we offer you insights on how to navigate this delicate terrain. Join us on this episode of the Enhance Your Practice podcast as Dr.Yoon-Schwartz engages with our guest, Dr. Narav Patel who dispels the shadows surrounding the risk of malpractice.
This discussion brings to light the significance of meticulous record-keeping, from patient communication to phone consultations and doctor-to-doctor discussions. Uncover the potential perils of modifying records and grasp why it's imperative to structure your differential diagnosis most logically rather than most dangerously. Learn how you can bulletproof yourself against possible malpractice claims with these effective documentation strategies.
PRS Article Referenced:
Plastic Surgery and the Malpractice
Boyd, J. Brian M.D.; Moon, Harry K. M.D.; Martin, Susan; Mastrogiovanni, Dena B.
You're listening to the Enhanced your Practice podcast series brought to you by ASPS University. I'm Diane E Schwartz, chair of the Practice Management Committee, and I invite you to check out all of our educational offerings, from professional surgical videos, courses on practice management and much more on ASPS at NET. Welcome to today's episode of Enhanced your Practice, and today we're going to be talking about plastic surgery and medical malpractice. There was an article in PRS in 2021 just discussing about the risk of malpractice in plastic surgery, which tends to be about 15% per year, and that in most of those cases they are settled with a dismissal or settlement and that only 7% of those actually go to trial and with that, there is a success rate of the plastic surgeon prevailing in about 79%. We are joined today by Dr Narav Patel Hi Narav.
Speaker 2:Hi, how are you? Thanks, Diane.
Speaker 1:Good.
Speaker 2:Thanks for joining me?
Speaker 1:Yes, and for those of you who've listened to other podcasts, narav has joined me previously and I thought he would be the best person to discuss this topic with me, as he's both a plastic surgeon and an attorney, and today we're just going to ask his insights on what I've said and give us maybe some advice for us to try and practice and be safe, but also to avoid litigation and, if those occurrences do occur, to have the most amount of success in these endeavors. All right, narav. So what do you think about that statistic and comment? Would you say you agree with that?
Speaker 2:As an attorney, I'm not surprised by that and, as we've talked in another podcast, I do expert witness work, so I know volume-wise what is out there for against plastic surgeons. But I think for the typical plastic surgeon not familiar with the legal process, that number is pretty scary. Right, I mean 16%. One in six chance. Our capsular contracture rates are probably better than that for our breast implants, and so I think people might wonder, of that one-six chance, how many of those are so-called valid versus frivolous lawsuits, and I think the encouraging thing on the flip side is that the vast majority of these cases prevail. So really the question isn't a matter of whether you're going to get sued, it's when, and so I think folks should take it overly personally with regards to getting named in something, as long as you're doing a good job. And I think the thing I would want to focus today on is enhancing clinical documentation and communication with the patient, both verbally and written. I think the important thing is having things written down and in what forms. So this is a helpful slide I actually got from attending the Georgia ACS meeting A colleague of mine who is part of a large group legal practice that does legal defense in the Southeast, his name's Dave McKenzie. He had an excellent slide I wanted to just steal and share with everybody listening.
Speaker 2:In terms of clinical documentation and I think things that plastic surgeons don't do very well because I see this on the plaintiff's side when I'm reviewing cases, or even on the defense side when I'm reviewing cases is articulating your thought process and your plan, and that starts at the initial consult, at the initial history and physical, and then moving on to your progress notes as well, especially in the case of a complication or unanticipated or unforeseen event, and also detailing that as much as you possibly can in the off note. And I know people are wanting to be efficient and rattle off their dictations quickly and efficiently. I just sat next to this ortho bro at the hospital the other day and he rattled off. It sounded like a pretty complex orthopedic surgery and seemed like a minute, and I'm sure there's a lot of mantras and things that probably could have been included there that the American Board of Orthopedics or the American Board of Plastic Surgery would want to see in a note, and so I think people should be cautious about using templates or dictating too rapidly to just kind of get it done, because they'll bite you in the butt later if they rely on that off note to see if there was something that was like a causation issue.
Speaker 2:With an injury, for example, foreign bodies retained. I'm involved with the case right now dealing with that, and there's a saying in law race if it's a locker in Latin means that things speaks for itself and honestly that's like an automatic settlement. So really it's mitigating the damages that are going to be allotted to the defense side in terms of did you take good care of the patient after the injury happened?
Speaker 2:So, anyways, going back to like appropriate or good or ideal documentation. This is an excellent summary because it's boiled down to lay person terms everyone can understand. You don't have to be a lawyer to understand these. You want to document. Here's what happened. Here's what I think is going on. This is my plan, or was my plan, or will be my plan. What will change that plan? Things change.
Speaker 2:Wounds don't heal very well, unforeseen issues can happen, patient non-compliance, et cetera. The plan was discussed with the patient or whoever's in care of the patient, if it's under age, or somebody else who has a proxy, and then the op note if a complication occurs, describe it along with difficulties, and I think most all plastic surgeons or surgeons in general typically put no complications or non-imparent in their op note. And you really have to think carefully what new complications may have arisen during a procedure, no matter how small, that you'd want to disclose to the patient, and I think the sooner you make an admission or disclosure, it doesn't mean you're going to hurt yourself. I think it might protect you from later on being caught in a liba omission type situation.
Speaker 1:I mean, I went to medical school I don't want to say how many decades ago, but several decades ago and back then I think the role was sort of keep everything very brief and document as succinctly as possible. When was that paradigm shift, would you say?
Speaker 2:Or I mean, yeah, it's a really good question. I mean, my father practiced in the 70s up until now, and I think he was of that era where your typical soap note would be four lines and barely legible in a chart. I think with the advent of electronic medical records especially, this has changed. I think we've moved from a paternalist-type climate in medicine from the 50s era, the good old days, to the 80s, and I think we're now in a patient-centric, patient autonomy-centric era. So I think those are two major factors that I think have led to this gradual creeper paradigm shift. I think it's on a macro level, it's good for patient care and patient safety, but I'm sure on an individual practice level.
Speaker 2:I certainly feel this pressure, even day to day, about just documentation of the float, you know just excess.
Speaker 1:T-wine. You almost feel like you know, as you're riddling off all this, you know detail that if you forget just that one last detail, do you know what I'm saying? So if you list 30 complications and the patient just happens to have the 31st and I think there's like that terminology where it's all encompassing, you know, and any and all like, yeah, exactly, and you know. I was just curious how much that covers you if you know it's not specifically named when you're being, it's sort of different if you name two or three brief things and then you know something else, sort of very unique happens. But then, as you were saying, we're getting into this very detailed description and I almost sometimes feel like you know, instead of naming those that are just most pertinent to this patient, having rattled off like 20 or 30 of them almost puts you at more you know liability or risk because you didn't name that 31st thing. So I just wanted to see what your thoughts on that was.
Speaker 2:I think most, at least in our field of plastic surgery, most of the complications are, you know, recited in a pretty standard manner the bleeding, infection, damaging structures type thing, wound healing delay, scarring, deformity. You know we all can rattle those off. I think it's important, though, to have procedure specific complications where it's relevant. You know I do oculoplastic surgery and you should always have the risk of blindness in your, you know, risk benefit, alternative discussion and consent forms. I think the American Society does an excellent job with its portfolio of consent forms, but I think one problem I see with members is just overreliance on a form and just having them sign an initial form without any documentation that the form was reviewed or they had opportunity to ask questions. I think you're not going to get in a huge amount of trouble if you're including reasonably foreseeable risks, I think, the rare events that you couldn't really anticipate, neither you or the patient. I think that comes with any surgery. You know the attendant risk of surgery.
Speaker 1:So right, like I mean the one that you mentioned, for example the retained form body. You know I don't routinely dictate that in my operating report.
Speaker 2:The standard of care and surgery is. You know you're not going to put a retained form body unless you're planning to go back to get it, like you know, like an exploratory lap and you're doing an open abdomen or something.
Speaker 2:So you know that's why it's that's called per se negligence, meaning you're automatically negligent because the thing spoke for itself.
Speaker 2:That's an extreme case, you know that's why we do instrument counts and you know you have staff members but at the end of the day, as my dad used to tell me since I was a kid, you're the captain of the ship and they're always going to go after the muddy trail and it's going to be either the facility or the hospital or it's going to be you as a provider, the folks that are in your crew. It ends up turning into a finger pointing game unless you document as accurately as you can how things played out. In that particular case, you know the surgeon tried to get rid of the tech who probably was directly responsible for that, but there was no paper trail that could come to a conclusion that that was the case. So it you know, then it creates a bad optic situation to potential jury or to a judge. So I think, lack of documentation or being the so-called efficient surgeon and being succinct, I think that air unfortunately, regrettably, and again I'm saying this with the bias of being an attorney myself I think that's over.
Speaker 1:And you know, for that particular example that you gave, where it's sort of you know, automatically deemed negligent, you know what kinds of mitigating factors would help, you know the physician prevail Like. I'll give you an example. I mean, let's just say the physician, you know, everyone said that the count was correct. They came out of the operating room. The count was apparently correct Because, I mean, obviously you only have a retained form body when the count is correct Because otherwise you wouldn't, you know, get out of that room. So I mean, you know, I'm just trying to think in my head, like what possibilities could there be other than saying that, you know, you followed everything and took care of the patient to the best of your abilities and I guess that's part of what you're saying to make sure that every other aspect is as clean and good as possible?
Speaker 2:Yeah, I think it's in that kind of situation where it's per se negligence, it's kind of damage control and it's about saying all the other aspects of your care was reasonable and appropriate and you know that might limit the damages that are sought at settlement or avoid a trial. But you know, I think, avoiding litigation altogether even in that situation, I think if communication is done well and early and often and directly. I think in cases where these types of things happen all of a sudden in a group situation, for example, the surgeon who's being sued is going to all of a sudden bring their partner in and all of a sudden care is going to transfer to that person because you know you want a second opinion.
Speaker 2:But keep it within the practice. These kind of things happen frequently and just put yourself in the patient's shoes. It's almost feeling like you're dumping their situation onto somebody else. Wound care, another one. We're supposed to be the wound care specialists. We're supposed to be the most knowledgeable about this stuff, having trained in pressure sores and things like that and a lot. I see a lot of aesthetic cases where there's a wound care complication and they're doing like not up to date wound care, you know, dowsing wounds with peroxide or things like that, and then the patient loses faith in the care and ends up going to wound care specialists who, ironically, is, say, a general surgeon but not a plastic surgeon, and that just creates a downward spiral where it makes the optics look bad that you're not rendering the best possible care and trying to keep it contained within your house and like hands on with you as a person getting sued, still actively trying to provide the best care.
Speaker 2:I see that time and time again. You know, like I said and this is something you know, I found interestingly, I thought about a job in government as well and I went through this process. I mean this is how the FBI documents. The FBI, if people don't know, are a bunch of lawyer cops. To summarize it, and the way they document it and I have a lot of pre-meds and residents come through my office is you want to memorialize what your thought process was as soon as it happened? So I again. I see a lot of surgeons. I used to be in a group practice. I've seen this even in my training. I'm focused with documents and I'm probably upsetting probably 99% of the listeners here. But you know, documenting something, dictating an op note, waiting till the next day, things get lost. Your memory gets fuzzy. I don't remember what I had for lunch on Tuesday, much less yesterday. So I think as soon as you can document an encounter, especially a troublesome encounter or problematic patient or patient with complications, that's not the kind of note that I would wait till the next day or the next week to sign or, in the case of academics, to test the resident's note. I think that's where you start to need to be more hands-on, more direct and articulate it as soon as you can. So that's where it looks better to a jury. Or you know in motion practice that you're documenting in a contemporaneous fashion. So other like specific do's and don'ts that my buddy Dave had given in this talk was you know, don't document by word of mouth. Okay, that's hearsay. A lot of that's inadmissible.
Speaker 2:This comes up. For example, I do facial trauma and I'm sometimes sought out for complications and cases involving this, you know, relying on a radiology report to make a clinical decision on a fracture. We're plastic surgeons. I mean when I went through my board certification process we had a facial trauma case. You look at the fracture yourself. You don't rely on a radiologist to make a determination when you're on call and then if you mismanage that and it's a delayed treatment, you can end up with, in the case that I was reviewing, partial blindness from a delayed ocular entrapment.
Speaker 2:So you know and this is coming up in the expert practice too that I do is that I can't give an opinion based off a radiology read. So ideally I'd want to look at the images myself, whether it's a breast MRI or ultrasound or a CAT scan. Even if I'm not a board certified radiologist, we're still trained to at least look at those kind of images to make a clinical decision, because they evaluate things and diagnose all sorts of things which might be incidentalomas versus clinically relevant things, and so it's our decision to use, you know, input, output what clinically relevant data to act upon. Other dues that he had mentioned was, you know, organizing the differential by most likely instead of most dangerous. So, to touch upon the risks that you were talking about, you know how many risks do you want to outline you?
Speaker 2:do this you're gonna turn off your aesthetic practice, right?
Speaker 2:So you know you just do a reasonable job pointing out the most relevant ones for that particular surgery, and so I do that and then I combine that with them. Having looked at American society consent format, their one is that is applicable, and I think between the two things and articulating it in your HMP whether it's your pre-op HMP consult note and or your op note I think you're pretty well covered. I mean, there is no such thing as risk-free surgery on our end or on the patient's end. So I think we also have to approach this. As you know, we're privileged to do this and there's also risks with having this privilege.
Speaker 2:And then phone calls is one thing that comes up a lot. Documenting clinical phone calls with patients, doctor-to-doctor discussions, those things really to protect yourself, ideally should be in the chart. I've talked about this issue many times with my risk management carrier and this is how I've even changed my own practice. Patient phone calls I got in the good habit from my group practice of calling everybody the night of you know a lot of docs do that or the next day. I would document that. I would put a phone note in the chart, you know, and document it contemporaneously and not wait to chart that, especially if there's concerns. All of a sudden there's a hematoma, what have you? That way there's a timestamp and like an accurate timestamp as to how things transpired, and then doctor-to-doctor discussions. There's a lot of finger pointing and things and dumps and you know consultants disagreeing about management when it comes to complex, you know inpatients and things like that. I think if there's any kind of discussion where you're concerned, just put a quick, even a one-liner in the chart. It shows that you care and it shows that what you're thinking, as opposed to somebody else implying what you're thinking, makes it look a lot worse.
Speaker 2:And then record alteration. We were talking about what? If we're missing something, I think it's okay to go back to amend an op note. You definitely don't want to do that in the midst of an active litigation, even with our boards. You know, once you submit your board's cases they say don't go back and change your notes. It's a great way to failure exam. But I think amending a note you know I'm with a variety of health systems, one of which, if you go back to a dendon note, it has to be like an addendum on the bottom. You can't just change the text within the body of the note. Any of that stuff there's metadata is trackable anyways.
Speaker 2:So you know, as long as you come up with the answer for why did you change your word here? And if you say, look, it was a mistake, I forgot to include the word not and it totally changes the meaning.
Speaker 2:That's okay if you're doing that well before a patient has an issue, but if you're doing it later, after you're being reactive because a patient has a complaint or you're thinking this is going south, that's gonna make you look worse. So the sooner you're gonna address something, pretty much in any capacity as it pertains to MedMal, the better it probably is gonna be for you, Even if you know that it's going the wrong way. There's probably gonna be a claim going against you.
Speaker 1:All right, so those were the items in that slide, I guess.
Speaker 2:Yeah, I thought it was a very high yield slide, which is why I took a photograph, because usually I don't get very much out of these presentations anymore on MedMal, but actually it's a very helpful summary of dos and dos.
Speaker 1:I mean, I'm gonna incorporate one of the ones that you just said. We always call our patients the day after surgery because most of my patients go home the same day and it's been a practice ever since I've been practicing and I think it definitely makes sense to memorialize that very quick, like phone call discussion. So I've already learned something from this podcast, so thank you.
Speaker 2:It's sorry to give you extra homework, but it's probably no, no, no. Safe lead to do.
Speaker 1:Yeah, I mean very rarely does anything come up from those conversations because obviously if something immediate were to happen you'd already know and as things develop sometimes they're not that exact next day. But I think it's definitely a good habit if you're already going through the effort of doing the actual physical work on it, to memorialize it, I think, makes sense.
Speaker 2:And I think it's probably important in terms of staff training as well to make sure anybody acting on your behalf is also documenting. Similarly and that's also where people get in trouble is where I don't know lost to follow-up is one example that actually led to that ocular complication case I mentioned. They neglected to get in touch with the patient and by the times they did get a hold of them, the outcome already happened. So sometimes it's not even things that are directly due to the doc, but it's just the staff acting on your behalf.
Speaker 1:Yeah, and I think in this day and age where there's multiple lines of additional practitioners sometimes assisting in the care or maybe the direct communication doesn't always come from you I think it's definitely really important to have those like you said systems in place.
Speaker 2:Yeah, and when it comes to APPs or mid-levels, I mean, I'm on the legislative committee and I'm just telling you that PAs want to be called physician associates, nurse practitioners want to become doctors. Push comes to shove If there's a bad outcome and they're involved with it, they're going to throw you under the bus, I'm sorry to say so. Caveat, mentor, in terms of utilizing those resources. They can be excellent when it's done appropriately, with appropriate supervision, but they'll sometimes act outside their scope and when there's a bad outcome they'll be like well, I'm not the doctor, but conveniently, when they want to be an independent practitioner, they'll utilize it with impunity. So just be careful when it comes to APPs.
Speaker 1:And a couple of other areas I wanted to target were situations where, let's say, you have potentially like criminal risks.
Speaker 1:I've been reading reports here and there of actually I think it was plastic surgeons also being sort of accused in a criminal nature.
Speaker 1:I think those are like the scariest aspect correct Of what we practice and I think most of us probably would not fall into that. But when you talk about the finger pointing type of things, I think one case that I had read and I don't know much about the specifics, but it was with a mid-level sort of CRNA versus a physician, and I don't want to discuss on this podcast the details of that, but I think, like you said, the sort of documentation and your exact role may have clarified a lot of those things, regardless of the finger pointing. And I think that's hard, though, because you're supposed to be a team and you would think that those things should all be inclusive. But I think, since we are the captain of the ship, it makes sense, regardless of our time constraints, to again take that extra effort. And if you don't write it, it didn't happen, or I forget what the exact saying on that is, but I think we should all be very cognizant and aware of that as well. Yeah.
Speaker 2:I think one thing, when it comes to criminal type cases, probably the most common scenario that's easily avoidable is an accusation of assault by a female patient with a male provider and chaperoning is critical. In what we do, we're valuing breasts for those of us that do bottom surgery or labia plasty, we're doing stuff down there and I think one thing I do I don't know if everybody does, or sometimes it's auto-populated in whatever charting system you have is who's present in the room.
Speaker 1:Chaperoning and who else is?
Speaker 2:in the room and I always harp on it with my own practice. I don't want to know that Bob came with his wife.
Speaker 2:I want to know the guy's name and what the relationship is to the patient, because not infrequently I'll find out they'll say, oh, we're common law married or this is a friend, but we might as well be married and it's a different legal relationship than if the spouse showed up.
Speaker 2:And so I try to insist on making sure I had a prisoner come the other day for a trauma follow-up and the guards just gave me their last name. I'm like nope, I want your first and last name and spelled and I put all that stuff in the note Because I want to know again. It articulates how things transpired, who is in the room, who is in the room and what things were said. And I think that can easily be encapsulated by just kind of keeping track of those little housekeeping items in your note and making it kind of a routine thing. So I think that's one thing that will get you out of trouble of, say, an assault accusation where you're just examining a patient, to have a female chaperone in the room. Or if it's a cisgender you're the same gender you might have to have somebody the opposite gender. It depends on the circumstances and I think that'll be especially important too when we're getting more and more involved with transgender. Care is to make the patient feel comfortable, but also to protect yourself against any unharned accusations.
Speaker 1:Yeah, I mean that's a really good point about which gender the patient believes or, I guess, what they are, and so I didn't really think about that in terms of chaperoning in the past, but that's a really good point.
Speaker 1:So I think, given that that field has expanded exponentially, I think it's really important for our members to take that into consideration, because what you thought was previously chaperoned may require additional efforts, pending who the plastic surgeon is, whether they be male or female. So that's a really good point. Now, another topic I'd love to discuss is as it relates to mitigating litigation in the field of cosmetic or just pure aesthetic surgery, because it seems more clear in the reconstructive and those kinds of procedures but when patients don't necessarily have a bad outcome medically per se but are unsatisfied and desire litigation, if you could just expand on that. I mean, I've done some little bits of investigation or trying to learn about this and it seems like it's all again about communication, documentation and really providing all the, I guess, alternatives and carefully and precisely discussing those, despite what you, as the plastic surgeon, may quickly advise the patient to Do. You know what I mean versus, so to be more inclusive, but if you could provide your thoughts on aesthetic mitigation? That would be great.
Speaker 2:Yeah, I think, speaking to my expert consulting practice, I not infrequently get cases on the plaintiff's side about undesired scarring, post-op, even though, as you said, medically there wasn't any deviation from care. Or people upset about their size when it comes to an augmentation or augmentation mastopects, urovision augmentation I get that quite a bit and I turn down a lot of those cases or I review it and after review I say there really wasn't much deviation from care. These kind of complications happen and they're usually articulated in the consent form and the informed consent process. So I think that's the type of scenario where you might be able to avoid things if you have a better discussion, a more fruitful discussion up front during the consultation process about these are situations where you can get less than desired scarring or less than desired contour, and we all like to show our best results right. When we attend meetings, people at the podium, the big wigs, always show their best results. I actually get more out of the presenters that show their complications and how they manage them. I'm thinking about oh shoot, I'm forgetting his name, but you see LA affiliated and he always presents his complications and I get a lot out of those talks and I think similarly, those are things that perhaps consider is to show outcomes that were less than optimal or where that happened, and you still coax that person along to an acceptable or good result.
Speaker 2:Talking about scar management, I've had second opinions where apparently the surgeon's practice is to do the surgery and if there's any undesired cosmetic aspect after that, they kind of just say you're on your own, and I think that's opening the door for a lot of unhappiness and even just if it isn't litigation, just bad reviews and reputation management is another thing we also have to consider.
Speaker 2:That's changed over the last 20 or 30 years, so I think those things could be addressed better up front in the consultation process and I think a lot of the members probably listening have setups where they do a lot of the work up with mid levels or MAs or nurses and then they kind of come in and finish off the discussion in about 10 minutes. I'd be cautious about that approach because I think there's an opportunity to nip potential issues and, as we have learned throughout our residency, you don't have to be a lawyer to know those patient expectations and trying to match them as best we can. I mean that's kind of the surgical psychiatry, that's plastic surgery and I think we need to get back to that or do a better job of addressing that on the front end rather than explaining yourself on the backend why this, that the other outcome happened. But yeah, very frequently I get undesired scarring, size change issues, contour issues, that, even though it's covered on a consent form, try to convince the plaintiff's attorney to not go after you.
Speaker 1:Yeah, and I think that's a very good point in terms of what expectations you set and how you try and meet those expectations. I've always sort of been one to maybe not set the bar too high and sort of over deliver under promise.
Speaker 2:Under promise, yeah.
Speaker 1:Yeah, absolutely. And all these quote unquote sayings are so ingrained because, fortunately or unfortunately, they come out to be so true that it really does make an imprint on you. Now is there an area I think we've discussed a lot of different areas but if you could just provide the membership with, like your you know, I guess as an insider, you know what you see the future of you know how we improve both the way we take care of our patients and I think for most of us, the sort of risks and issues of litigation is that it really does impact your practice just in terms of dealing with them and emotionally and time wise and potentially financially as well. So I mean, it was a great discussion, but if there's a few other pearls that we've missed, I wanna make sure I give you the opportunity to talk about them.
Speaker 2:I think it's definitely very emotionally distressing if you're facing litigation or fearing it. And I talked to my risk management career. I've never yet been named in one. I'm just waiting over the years for this to happen, but I'm sure I'm gonna take it personally, even with my background on both sides of the fence being a lawyer and a doctor, I think having your. I've even had preemptive discussions with my risk management in terms of a complication or a patient being non-compliant or not going with my prescribed care, and it's almost like having a therapist.
Speaker 2:You know people talk to a bartender or a priest. It seems like mine is my malpractice carrier. So I think we've spoken about this at a previous podcast, about using your malpractice carrier to the best of your ability. I mean, as you mentioned, diane and the other podcasts, your car has all these features and we don't use them. And you know, when it comes to our malpractice coverage, one of the things, two of the things that we don't utilize is calling them before problems start to fester and also, in terms of reputation management, how to address that in a HIPAA compliant manner. So I think those are a couple of things where your carrier, if they're a good one, can help you a lot.
Speaker 2:I had an administrative matter which was really was a non-issue, but I was just being extra cautious and they gave me coverage just to talk to a lawyer before I had my meeting to make sure I didn't put my foot in my mouth, and I got this help, even as an attorney myself. So it's like when you guys write essays in college, you always have 10 people look at it to have a fresh set of eyes. I think that's where having an attorney you know covered by your malpractice that you're already paying for. It's not anything additional you're taking on expense for. It's very helpful. And, as I mentioned throughout this podcast, contemporaneous documentation to whatever extent you can possibly do it, I think would only help you and minimize any harm later on by seemingly being defensive.
Speaker 2:And then one last thing that I think is kind of scary. It's exciting and scary at the same time, and I've spoken about this at other physician meetings as AI and I think we're gonna start to incorporate artificial intelligence in our charting and I think, for standardized routine documentation or maybe for, like, a normal or negative exam, that's fine. But I think there's room for caution and it can be scary where you know you're gonna have to defend yourself against a note that you didn't even write. How scary is that gonna be? So I think, as much control as you can retain over the critical aspects of your documentation, I think we have to be cognizant of that as AI starting to become more and more important, and we're admittedly I'm probably gonna be this way in 10 years starting to incorporate some of those elements of AI into my clinical documentation and practice.
Speaker 1:Yeah, I mean, I was involved in a family member's preoperative consultation and you know they allowed me to sort of like FaceTime, like zoom in, and I thought to myself like wow, you know, I wonder if this doctor understands like I could also be filming him. And I think you know that's. Another also scary aspect of our practice is that at any time, I mean there's devices everywhere you know yes. A patient could walk into your exam room and they'll just have their phone on.
Speaker 2:You just assume, like your phone is on Always there's a saying in law assuming means making an ass out of you and me, but this is a kind of cautious assumption is assume they have a recording device on you.
Speaker 2:There have been cases where a patient had their phone on during a colonoscopy and the doctor was talking disparagingly about the patient's body habits or whatnot, and it led to, you know, litigation into a settlement. So you know, using Siri, using these devices for your music I don't use those in the operating room. We didn't get time to talk about that, but I don't think there's any privacy anymore. So, you know, I try to practice what I preach and I try to expect everything I say and do is potentially discoverable, even things behind closed doors. You know, somebody's participant that discussion. They could be recording you and there's state by state specific laws about that.
Speaker 2:New York, I know, allows for one party recording of a discussion. I think Georgia as well. Some states don't allow it, but I would just go into those kind of things, saying you don't wanna say or utter or write anything that you would be embarrassed for your mother to read or, you know, for a plaintiff's attorney to read later or for your own patient to read because they're entitled to the records, which is another patient autonomy thing. That's different than it was a generation ago.
Speaker 1:Right, I mean they have, you know, like wide access and very timely access as well.
Speaker 2:Yeah, and it's a good thing on a macro level, as I said, for patient care and safety, but on an individual level it's becoming burdensome and stressful. But I think if it just becomes a routine part of the way you practice, then it takes the edge off. You don't have to think about it as much if it becomes an automatic, kind of parodicolized way of documenting and communicating with your patients.
Speaker 1:Yeah, I mean, even during this discussion I've already become like super sensitized. Yeah, it's almost like you're going through laser tag and there's so many routes for you to be hit. It's almost paralyzing to some degree. If you were the kind of person to worry about every single thing that you did, or if you were in a practice situation where you didn't have deep relationships, for example, I mean I'm super lucky. I have really very close ties with each of my patients because I am in a type of practice where I can spend that kind of time. But in situations where maybe there is multiple levels, for example between you and the patient, because there's just that number factor, I think the systems that are built around you maybe have to be more of a firewall for protection. So I guess there's different ways to approach things, but it almost seems a little scary.
Speaker 2:Yeah, it makes me want to have a cocktail hour with you guys.
Speaker 1:Yeah, right, I'm just wondering if you can go around that yeah, I mean between the video and the audio and any of your devices listening in. It just seems like.
Speaker 1:But I think these are very important things for our members to be aware of.
Speaker 1:I think there are things that we're taught in our training, but I think these are some of the things we unfortunately learn by falling or by going through experiences which are sometimes unfortunate.
Speaker 1:And I think because of that I think those of us because most of these cases are sort of opined, I would say, by our own colleagues and I think it's really important to always put yourself in each other's shoes as you discuss these matters, because I mean, whenever I see a case, for example and this is another area I think is super important a secondary referral case, I think it's very important for us not to put a lot of sort of strange ideas into the patient that may not actually be medically correct, just reacting very sort of audaciously with different outcomes. I mean, you can certainly sympathize and offer assistance in terms of the medical component, but I think, just a lot of shock and awe at some outcomes. I think you always have to put yourself on the other side, because they may be some of the reasons that offer a patient the confidence when there really wasn't anything particularly done it was just a non-fortunate outcome.
Speaker 1:So I think we all because we're all very critical people I would say yes.
Speaker 2:We're tight-aid perfections yes, right, and we're competitive and we don't play along in the sandbox, as well as perhaps other fields. But I think Monday morning quarterbacking is definitely. Be cautious about that. You might be on the receiving end of that with a patient that goes to somebody else and the surgeon, who has no complications, doesn't operate right. There's some saying on that.
Speaker 2:So I think putting yourself in that position of the other side I think is a helpful way to approach things. And plaintiffs, clients, they do rely on those statements and they do talk to their counsel saying well, this person said this should have been done or that should have been done. And you have to be cautious if there's not a medical basis to it, as you pointed out, you can get yourself in trouble and I've had to turn down a case because that's all they had to go by and the medical records didn't support it.
Speaker 1:That's very interesting. All right, well, this has been very helpful to myself personally. Again, like you said, need to go for a little cocktail after this, but I hope that this was also food for thought. We didn't go into a vast detail on each and every one of these, but I think the major concepts are there about giving your opinions and also all the different possibilities of exposure and the responsibilities set forth upon ourselves to try and mitigate these issues, both for the safety of our patients, obviously, and first and foremost, but that will help us dictate our own destiny or issues in the future. So, all right, well, thank you so much, narav, and I hope you have an enjoyable summer. And with this we conclude our final episode on plastic surgery and the law. Narav will be at our Austin meeting, so thank you.
Speaker 2:Yeah, thank you so much for having me and I look forward to meeting other members in Austin this fall.
Speaker 1:We hope you enjoyed this episode of the Enhance your Practice Podcast series brought to you by ASPS University. You can listen to our other episodes on other podcast platforms or you can download recordings directly from ASPS EdNet. New episodes coming soon.