Can dermatologist practicing plastic surgery be found guilty of fraud?

March 1, 2011

Dr. Surgery recently expanded his surgical horizons and began performing abdominoplasties. His third patient became septic, and she now has permanent lung and kidney damage secondary to the sepsis. The patient has sued Dr. Surgery, contending that he fraudulently misrepresented himself as a plastic surgeon. Does his patient have a claim based on fraud?

Key Points

Recently, Dr. Surgery expanded his surgical horizons and began performing abdominoplasties. Unfortunately, his third patient became septic after the abdominoplasties. She survived, but now she has permanent lung and kidney damage secondary to the sepsis.

The patient has sued Dr. Surgery, contending that he fraudulently misrepresented himself as a plastic surgeon. He contends that he tells his patients that he does plastic surgery, but he does not state that he is a plastic surgeon. Does his patient, the suing plaintiff, have a claim based on fraud?

It is well-established that physicians are required to disclose all material information to their patients to help them make informed decisions. But is the physician's "experience" considered to be part of the relevant information that is crucial in assisting a patient in making informed decisions? Most courts have determined that it is, but the question to be asked is whether the lack of such disclosure raises an issue of fraud.

In a recent case, a court addressed the issues of both fraud and misrepresenting credentials to obtain informed consent. In Howard v. UMDNJ, the plaintiff went to see the defendant physician for a consultation concerning several back problems that he had as a result of two separate car accidents.

The defendant physician contended that during a consultation, when corrective surgery was recommended, that defendant informed the plaintiff of all the alternatives and risks. After hearing all of the information, the plaintiff elected to undergo the surgery.

The plaintiff claimed he was not made aware of all of the risks during the consultation. Specifically, the plaintiff contended that when the physician was asked if he was board-certified in neurosurgery, he said that he was, even though he, in fact, was not.

The plaintiff also contended that it was only after the doctor misrepresented the number of times he had performed this procedure that the plaintiff agreed to undergo the procedure. There were subsequent complications from the procedure, and the plaintiff was rendered a quadriplegic. The plaintiff tried to bring a claim for fraudulent misrepresentation as well as lack of informed consent.