In this month's Legal Eagle column, David J. Goldberg, MD, JD, discusses a case involving a dermatologist performing plastic surgery.
DR Surgery is known in the dermatologic community as an aggressive highly competent dermatologic surgeon. He has been doing blepharoplasty and facelift procedures for years. In fact, he even has privileges to do these procedures in the surgery department of the local hospital. Recently Dr Surgery expanded his horizons and began performing abdominoplasties. Unfortunately, the third time he did an abdominoplasty, the patient became septic. She survived but had 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 part of the relevant information that is crucial for a patient to make 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 Howard v UMDNJ, a New Jersey court case decided in 2002, the plaintiff patient went to see the defendant physician for a consultation concerning back problems that he had as a result of 2 car accidents. The physician contended that during a consultation, when corrective surgery was recommended, he had informed the plaintiff of all the alternatives and risks. After hearing the information, the plaintiff elected to undergo surgery. The plaintiff claimed that 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 neuro-surgery, he said that he was, even though he was not. 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 became quadriplegic. The plaintiff tried to bring a claim for fraudulent misrepresentation as well as lack of informed consent. The court said that the case raised the issue of whether a patient’s consent to surgery obtained through alleged misrepresentations about the physician’s professional experience and credentials is properly addressed in a claim of lack of informed consent, or battery, or if it should constitute a separate and distinct claim based on fraud. The court was not convinced that misrepresentation of experience and credentials was enough to be considered as an independent fraud claim. This issue, the court stated, could be evaluated simply as an issue of informed consent. The court stated that although personal credentials and experience may not be a required part of an informed consent disclosure under the current standard of care required of doctors, the question raised in this case is whether significant misrepresentations concerning physician’s qualifications can affect the validity of consent obtained. The answer obviously is they can.
In the end, Dr Surgery’s actions are more likely to be evaluated based on the actual surgery performed or on the appropriateness of informed consent, rather than on whether he was a plastic surgeon or was a doctor performing plastic surgery. It is not likely that a fraud claim will hold up in court.