The liability dilemma
Many of the ED physicians Dr. Carroll heard from said that they wouldn’t have treated the woman who needed to have drains removed. Unlike the Brazilian-butt-lifts-gone-wrong in Miami or the complications Dr. Genes sees in New York City, Dr. Carroll’s patient wasn’t in a state of emergency. Most ED physicians said they would have sent her on her way to find a surgeon.
“In general, we shouldn’t be doing things we aren’t trained to do. It’s sort of a slippery slope,” Dr. Genes said. He’s comfortable with removing stitches, but for surgical drains and plastic apparatuses, “I don’t feel particularly well trained. I’d have to consult a colleague in general surgery,” he said. When he does get one of these patients, he works the phones to find a plastic surgeon who will see the patient, something he says their original plastic surgeon should have done.
“Sitting there with the patient, I felt a little bad for her,” Dr. Carroll said. “I knew if I didn’t do it, it would be weeks while she bounced around to urgent care, primary care, and finally found a surgeon.” But by removing the drains, he did shift some of the liability to himself. “If she developed a wound infection, then I’m on the hook for [that],” he said. “If I send her away, I have less liability but didn’t quite do the right thing for the patient.”
In replies to Dr. Carroll’s thread, some doctors debated whether these types of cases, particularly those in which surgeons forgo follow-up care, could be considered medical abandonment. Legal experts say that’s not exactly the case, at least it would not be the case with Dr. Carroll’s patient.
“I don’t think they’ve abandoned the patient; I think they’ve abandoned care,” said Michael Flynn, JD, professor of personal injury law at Nova Southeastern University, in Fort Lauderdale–Davie, Fla. “And that abandonment of follow-up care, if it falls below the standard of what medical professionals should do, then it’s malpractice.”
“The doctor didn’t just walk away and become unreachable,” said Bernard Black, JD, a medical malpractice attorney and law professor at Northwestern University, in Evanston, Ill. Technically, the surgeon referred the patient to the ED. Mr. Black agreed that it sounds more like a question of malpractice, “but without real damages, there’s no claim.”
Even if not illegal, sending these patients to the ED is still highly unethical, Dr. Carroll said. The authors of a 2014 article in Aesthetic Plastic Surgery concur: “It is the duty and ethical responsibility of plastic surgeons to prevent unnecessary complications following tourism medicine by adequately counseling patients, defining perioperative treatment protocols, and reporting complications to regional and specialty-specific governing bodies,” they write.
Sometimes patients need to travel, Dr. Matarasso said. Recently, three out-of-state patients came to him for procedures. Two stayed in Manhattan until their follow-up care was finished; he arranged care elsewhere for the third. It’s the operating surgeon’s job to connect patients with someone who can provide follow-up care when they go home, Dr. Matarasso said. If a surgeon doesn’t have a connection in a patient’s home city, the ASPS has a referral service to help, he said.
“My frustration was never with the patient,” Dr. Carroll said. “No one should feel bad about coming to an ED for literally anything, and I mean that. My frustration is with the surgeon who didn’t go the one extra step to arrange her follow-up.”
A version of this article first appeared on Medscape.com.