Originally published March 2016
Most elective cosmetic surgery is very successful. However, patients undergoing cosmetic procedures often have high expectations that may be unrealistic. By conducting and documenting an informed consent discussion physicians can minimize the potential gap between what patients want and what can reasonably be provided.
Patients’ unrealistic expectations about the outcome of an elective cosmetic procedure can be potentiated, in part, by the fact they are paying privately for the services. Healthcare professionals may contribute to these expectations, intentionally or not, by presenting idealized results or giving incomplete information about a procedure and possible complications. For these reasons, some courts may hold physicians to a higher standard of disclosure in consent discussions for cosmetic procedures.
These issues were underscored in a review of 89 CMPA cases from the last five years involving elective cosmetic procedures and alleged suboptimal consent. For this article, the CMPA only reviewed cases where an uninsured procedure was performed for indications not related to health and therefore not covered by a provincial or territorial health plan. While frequently aesthetic operations, these procedures, also included vision correction surgery. The procedures were performed by a number of different types of specialists.
Despite the need for increased vigilance, there was no consent discussion or documentation of a consent discussion in almost one-third of the cases.
Understanding the factors that influence medical-legal risk in this practice area provides context for problematic consent cases.
Patients often have high expectations for the results of elective cosmetic procedures. Psychological factors, personal or second-hand experiences with previous cosmetic procedures, and media portrayals can all contribute to patients’ heightened expectations. Online photo galleries may show a biased sample of the most outstanding surgical results. Not surprisingly, inappropriate patient selection is often linked to consent issues in these procedures. In a small number of the reviewed CMPA cases, surgeons were inappropriately influenced by patients’ preference for a particular procedure over the recommended approach. In a few instances patients had been turned down by another surgeon for the same procedure.
Experts on patient dissatisfaction with aesthetic surgery recommend that healthcare professionals first consider the nature of a patient’s presenting concern and physical appearance, the healthcare professional’s own ability to address the concern to the patient’s satisfaction, and the patient’s ability to tolerate complications.1
In some CMPA cosmetic consent cases, patients were healthcare professionals who presumably understood the risks of the procedure. Still, even when patients are assumed to have more knowledge of cosmetic surgery, such as those working in healthcare, the consent discussion must be informed.
As with many procedures, communication barriers between physicians and patients can compromise informed consent. Yet, difficulties stemming from a patient’s language ability or level of understanding can often be managed. Medical interpretation services can be accessed, and discussions and written materials can be worded for clarity and comprehension. Generally, the courts expect physicians to overcome communication issues when obtaining informed consent.
Patient expectations can also be influenced by the healthcare professional’s description of procedures and the expected outcomes. Many of the CMPA cosmetic consent cases involved overly optimistic descriptions of expected results. For example, patients were promised “beautiful” or “amazing” results. Similarly, there were instances of downplaying the potential for failure or the likelihood of complications.
In a small number of the cases, the courts’ decisions were not determined by issues with the consent discussions, but rather by other factors such as the physicians being found to be practising beyond their scope or licence, or the type of surgery being performed was deemed inappropriate by the courts.
The consent discussion and documentation
As to the content of the consent discussion and its documentation, peer experts in the CMPA cases reviewed were generally critical of the following:
- reliance only on generic forms to obtain and document informed consent
- supplementary written materials that were difficult to comprehend
- inadequate discussion of:
- the likely outcomes of the surgery
- recognized risks and complications including those that are rare but of major consequence
- pre-operative co-morbidities, e.g. diabetes, obesity, and other risk factors such as smoking
- post-operative precautions, including the risks of smoking, need for mobilization, and use of support garments
- the new or innovative use of non-approved approaches or devices, or off-label drugs
The consent discussion was often found insufficient for repeat or revision procedures and for patients who had previous cosmetic surgeries.
Case example: Misleading consent form
A 51-year-old man visits a laser eye clinic interested in improving distance vision in his left eye. He is seen on two occasions by an ophthalmology nurse who assesses him and explains the proposed procedure. At another visit, a nursing assistant conducts the consent discussion. The following month, the ophthalmologist meets the patient just before surgery and asks if he has any questions. The patient says that he does not. Neither of the consent discussions or the consent form contains information on the effect of the surgery on the patient’s near vision. The patient undergoes uneventful LASIK on his left eye. Post-surgery the patient is dismayed to discover a marked reduction in his near vision requiring glasses.
The patient starts a legal action alleging a lack of informed consent. The judge finds that the information material given to the patient and the wording of the consent form was short on details and fell below the standard expected in the circumstances. While these materials do mention the need for reading glasses as a possible result, the judge finds that the patient was never informed that “in agreeing to undergo the surgery, he was necessarily and automatically accepting a trade-off whereby he would surely no longer need correction glasses or contact lenses of his distance vision, but in exchange, he would surely need glasses for his near vision.” The judge finds in favour of the patient.
In obtaining consent for cosmetic procedures, physicians should take particular care in explaining fully the risks and anticipated results. The courts may impose a higher standard of disclosure for these procedures.
Risk management considerations
Physicians and surgeons who perform cosmetic procedures should consider the following suggestions, which are based on peer expert opinion in the cases reviewed:
- Obtain a detailed patient history to ascertain patients’ motivation and determine the appropriateness of the procedure and reasonable alternative options.
- Assess patients’ ability to understand the information being provided.
- Access medical interpretation services, as appropriate.
- Consider using decision aids to help patients understand and weigh their options including alternative procedures, no surgery, or delay of surgery.
- Use appropriate printed information with diagrams and plain language instead of medical terms to supplement verbal consent discussions.
- Before confirming consent, give patients time and opportunity to absorb the information and ask questions.
- Conduct consent discussions that include the following:
- anticipated results
- significant risks
- rare, but important risks of major consequence
- pre- and post-operative precautions
- patients’ apparent understanding and expectations
- Document consent discussions in patients’ medical records.
- Ensure patients’ consent forms are signed and are part of the medical record, and that they include all procedures performed and prostheses used.
- Repeat these consent practices for any revision procedures and at regular intervals for repeat procedures.
- Constantian, M.B., Lin, C.P., “Why some patients are unhappy: part 2. Relationship of nasal shape and trauma history to surgical success,” Plastic Reconstructive Surgery (2014) Vol. 134 No. 4, p.836-51.