Your Practice Made Perfect
This podcast series provides support, protection, and advice for today’s medical professionals. Brought to you by SVMIC, a mutual insurance company that is 100% owned and governed by our policyholders.
Apr. 27, 2018
Episode 013: The Case of Reduction Results
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Speaker 1: You're listening to Your Practice Made Perfect, support, protection, and advice for practicing medical professionals. Brought to you by SVMIC.
Brian: Thank you and welcome to our podcast today as we review a closed case. I'm Brian Fortenberry. In a moment we will get into a discussion regarding this, but prior to that, let's review the story at question. 18 year old Samantha Smith had struggled with back pain and muscle spasms through her teenage years due to the development of extremely large breasts. This led to problems with self-esteem, depression, and had a negative impact on her overall quality of life.
Samantha had sought care from several medical providers but none were willing or in a position to provide her with any treatment options. An ENT physician, practicing in the small town where Samantha lived, began extending his practice to include various cosmetic procedures including the face and neck. Seeing that the physician offered cosmetic services, Samantha obtained an appointment with this physician.
At this initial appointment, Samantha explained how she suffered from chronic back pain caused by her large breasts that resulted in her being in constant pain, resulting in severe depression, and even thoughts of suicide at times. She explained that she did not have the financial resources to pay for breast reduction surgery and set forth that she had been turned down by several other physicians when she sought treatment.
The physician initially declined to perform the surgery, stating that he was not a plastic surgeon and that he was not experienced in breast reduction surgery. However, ultimately the physician agreed to perform the surgery, if the procedure was approved by the patient's insurance carrier as being medically necessary. The insurer approved the procedure and the surgery was scheduled.
Since the physician was not credentialed for breast reduction surgery in any surgical center or hospital, the decision was made to perform the procedure in the office setting with the use of conscious sedation. The patient understood and agreed to have the procedure performed in the office as she was desperate for the relief the procedure would provide.
The breast reduction went forward as planned with the physician removing just over three pounds of tissue from each breast. Initially, Samantha felt much better following the procedure and expressed great appreciation for the relief the physician provided through the breast reduction surgery. However, her attitude changed quickly when she developed wound infections in both breasts.
Wound care continued over the next seven months, which included multiple procedures for debridement of the wounds and a scar revision surgery. At the end of this treatment, the infection had cleared and the wounds had healed but Samantha was left for deformities in both breasts that would require further surgical treatment.
As would be expected, Samantha consulted with an attorney and a lawsuit was filed. This lawsuit alleged multiple basis for negligence, including lack of training and qualifications for the procedure, failure to obtain adequate informed consent, improper performance of the extensive procedure in an office setting, improperly performing the procedure under conscious sedation, and overall mismanagement of the care.
Further, the attorney for the plaintiff asserted that the procedure was not done with a proper motive, but was instead done for the financial benefit of the physician. I welcome in Ken Rucker, SVMIC attorney. Ken, welcome.
Ken: It's nice to be here, Brian.
Brian: So Ken, before we even get into this obviously very complicated case, tell us a little bit about yourself and your background here at SVMIC.
Ken: I am currently the vice-president of claims. I've been with SVMIC for a little over 18 years. I've had various roles in the claims department.
Brian: Well, I tell you, just reading the description up front, this is obviously fraught with several issues that we can discuss here. On the forefront, could it be disputed that in this case the physician's motives were pure? Was he really trying to do just a good deed or were there alternative motives suspect in this case with this teenager?
Ken: Every story has two sides to it. The plaintiff who sought to have the procedure performed turned on the physician once the complications arose and there was a poor outcome.
Ken: While the physician contended that his motives were pure, the fact that this was not a procedure that he normally performed, that he performed the procedure at his office, and his decision to perform the surgery only if insurance approved it from a financial standpoint, raise the issue that this fell out of the spectrum of a good deed. And once issues like this are raised in the context of litigation, the jury makes the ultimate determination as to whether or not the motives were pure or not.
Brian: Yeah, there is a lot there. Do you think that the physician recognized the limits of his training in this situation? Because as we said earlier, he was an ENT and now we're doing this breast reduction. Did that ever cross his mind do you think that he recognized that maybe this was out of where he should practice?
Ken: I think the answer to that is yes and no. At first, the physician was hesitant to perform the procedure, but his hesitancy lessened as he listened to the patient's history, and the mental and physical issues caused by her condition. This caused him to lower his guard and create a situation where he agreed to do it if the patient's insurance company would approve it as being medically necessary. This determination by the insurance carrier became the deciding factor as to whether he would undertake, perform the procedure, and trumped any reservation he had related to his training.
Brian: So it does sound in this situation that maybe he had a soft spot in his heart or compassion for this young lady that was having these issues, and that maybe blinded some of the judgment. So I think yes and no, you're dead on right there. The procedure though was performed in the office setting and not at any type of hospital or surgical facility at all, how did that play into the defense of the case? Did that complicate things?
Ken: The fact that the procedure was performed as an office procedure instead of a surgical facility became a part of the attack against the quality of the physician's care. There was not an independent entity who had vetted the credentials of the physician to perform the procedure. Patient's insurance carrier had approved the procedure as being medically necessary, but this assessment did not undertake to evaluate the physician's credentials to perform it.
Brian: Yeah, and I imagine in the process of once you get to preparing for the case once it's received in potential litigation, you're having to get your experts in and start really reviewing the case, and given the facts of what we've discussed so far, did you come across experts that were initially able to review the case or at least willing to review the case, however they were really unwilling to look past the fact that this physician's lack of training in this area was a big deal?
Ken: The experts who review the case on behalf of the physician were willing to look at the totality of the case.
Ken: The experts who were consulted noted that the wound healing and infection were complications that could occur without negligence. However, the documentation, especially as to the informed consent discussions with the patient, could have been better. The experts who had more specialized training in breast reduction surgery also were somewhat critical of the surgical technique used. The lack of specific training in this area was a consideration in the assessment by the experts, but it was considering in the totality of the overall care.
Brian: Yeah, I can imagine that as you have people looking at that, that could be challenging to overlook that, even from the standpoint of just not only a civilian, but certainly from physician. This physician though, it's really hard to see maybe what his heart was, as we said early with he really felt for this young lady. That being in perspective of this question, do you feel like the physician was really shocked or surprised upon receiving the lawsuit? Because he probably felt like he was really helping this young lady, so was he shocked?
Ken: I think shocked is a good way of putting it, but the physician when we talked to him about it related that he was heartbroken upon receiving the lawsuit.
Ken: Looking back, it is to see how the physician tried to provide treatment that the patient needed, although one can second guess whether this was the right course for the physician to take. From his vantage point, he tried to take on a procedure that no one else was willing to do and this simply resulted in a recognized and known complication, so that was his perspective.
Brian: Well, and you wonder now given those same set off circumstances and facts, what his decision might be. What are the main takeaways from this case Ken, that we might be able to provide our listeners to say, these are some main facts of this particular case that could be avoided by physicians in the future to maybe alleviate a litigation situation?
Ken: I think the main focus is, if you look at the practice of medicine, it's very broad. In light of this, physicians have great latitude in their treatment of patients. A physician still needs to be careful from an ethical, licensure, and from a liability standpoint to make sure that he or she is comfortable with the care and that their peers would view the physician as competent to perform the medical services undertaken. The physician believed that he was competent to perform this service, but other experts, although they could be supportive at times, question whether he was truly qualified to have performed this procedure given his lack of specialized training. Even under the best of care, things are not always going to go right.
Ken: So it's much easier to defend one's actions when the care rendered falls clearly under one's specific training and experience. Otherwise, a physician may find every decision made is second guessed on the backend when things go wrong and a claim is asserted.
Brian: Even though, as you said early, that the practice of medicine can be broad, it's probably a good practice to know where your scope falls and what you're best at, and stick to that. Would you say that's true?
Ken: I think that's correct and that's pretty much any professional that's giving specialized advice, whether it's a lawyer, a doctor, whoever, you need to be making sure that you're competent to provide the advice and guidance, and in this case, the treatment that's being rendered to the patient.
Brian: Ken, thank you so much for this look at this case and hopefully this will really help people understand maybe that scope that they need to focus on for future.
Ken: Thanks Brian.
Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at svmic.com/podcast. The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policy holders are urged to consult with their personal attorney for legal advice as specific legal requirements may vary from state to state and change over time. All names in the case have been changed to protect privacy.
The contents of this Podcast are intended for educational/informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and/or change over time. All names have been changed to protect privacy.
About our Guest
Kenneth W. Rucker is Vice President, Claims for SVMIC. Mr. Rucker graduated from David Lipscomb University with a degree in Business Management. Following his undergraduate studies, Mr. Rucker attended the University of Memphis, Cecil C. Humphreys School of Law where he attained his law degree. After law school, Mr. Rucker practiced law with the Tennessee Attorney General’s Office and with the law firm of Manier & Herod in Nashville, Tennessee before joining SVMIC. Mr. Rucker has been with SVMIC since 1999 in various roles in SVMIC’s Claims Department.
About our Host
Brian Fortenberry is Assistant Vice President of Underwriting at SVMIC where he assists in evaluating risk for the company and assisting policyholders with underwriting issues. He has been involved with medical professional liability insurance since 2007. Prior to his work at SVMIC, Brian worked in the clinical side of medicine and in broadcast media.