January 19, 2016



Thanks for your great newsletter. I have a topic.

If a non insured patient has a cosmetic procedure performed and suffers a complication requiring hospitalization (say a heart attack), does a pre op waiver acknowledging the patient's financial responsibility "immunize" the surgeon, not from a med mal case but from a suit requiring reimbursement and coverage for the hospital care?

Dr. R

Ah, good question!  This one falls in that elusive category of "how do I insulate myself from a potential malpractice suit and damages?"  Using your patient intake forms is a good way to try to manage expectations, and certainly a patient financial policy is an important one to require execution. Whether you can use a patient's financial acknowledgement they assume the cost of a cosmetic procedure to insulate from unforeseen expense/damages is another story.  For a more complete answer I've asked Caroline Wallitt, a partner of our firm's litigation department to chime in - 

In the hypothetical you described, the patient would generally bring one medical malpractice lawsuit seeking many types of damages, including costs from the initial cosmetic treatment, the subsequent hospitalization, and future care, as well as damages for emotional distress.  When a provider uses a document like a pre-op waiver in her defense, the court must decide whether to enforce or reject it.  Unfortunately, the document is not bulletproof.

Courts typically reject a pre-op document when the patient/plaintiff proves that a condition existed that should invalidate it—for example, the patient lacked the capacity to execute it or the document was unclear and the provider failed to sit down and explain it.  Alternatively, courts will reject a pre-op document if the plaintiff/patient proves that, despite the document, the provider’s care fell below the requisite standard. 

The good news is that you can take steps to increase the likelihood that a court will enforce your pre-op documents.  Make them readable and specific.  Distribute them prior to the surgery date, allowing the patient to take them home.  Implement a procedure where a professional from your office verbally explains the documents’ contents to the patient and addresses any questions (and then be sure that the meeting has been noted in the chart!)  Healthcare counsel can further advise you about these, and additional steps, that you can implement with regard to your pre-op documents.

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Contact Jennifer at Jennifer@Kirschenbaumesq.com or  at (516) 747-6700 x. 302.