And While You’re At It, Could You, Would You?

What surgeon has never been asked by a patient to “take care” of a little something extra, usually a cosmetic procedure, while operating? Probably only those with patients who are incapable of speech.

A case of the patient who wanted an abdominoplasty during a hernia repair illustrates the perils of such requests.

The 61-year-old female patient presented to Dr. S, a vascular surgeon, with strong symptoms of a hernia in the right groin area. In the course of discussing a hernia repair, the patient, who also had significant abdominal scarring and masses from an earlier liposuction, asked Dr. S if she would also perform an abdominoplasty. Dr. S told the patient that she does not do plastic surgery and that the patient would have to arrange for her insurance to pay for a plastic surgeon for that procedure. Dr. S did not schedule the patient for hernia repair because of the poor condition of the patient’s lungs.

In a return visit six months later, the patient reported improvement in her lungs and increased lower abdominal pain from the hernia. When the notion of an abdominoplasty again arose, Dr. S told the patient that she could not perform such a procedure. At the patient’s insistence, however, Dr. S explained that she could perform the incision in such a way as to give a pleasing result.

On the consent form, Dr. S described the surgery as “repair of multiple ventral hernias, right inguinal hernia, possible resection of ischemic skin flaps, possible implantation of Marlex mesh, enterolysis, possible ‘sure closure’ with closure device.” Dr. S’s operative findings described an “indirect right inguinal hernia ligament and ventral midline hernia below the umbilicus. Right inguinal hernia repaired with Marlex mesh. Ischemic skin flap resected and closure performed with Sure-Closure device.”

The patient did well through four follow-up visits, but failed to return for a fifth. Several months later, Dr. S learned that the patient was unhappy with the surgery. When Dr. S called her, the patient said she did not get the surgery for which she had waited eight years—an abdominoplasty. Dr. S reminded the patient that her insurance had refused to pay for a plastic surgeon to perform an abdominoplasty.

In her subsequent lawsuit, the patient alleged that Dr. S did not do the “tummy tuck” that had been promised and that Dr. S negligently performed the hernia repair surgery. The case was later transferred to arbitration pursuant to a physician-patient arbitration agreement.

Expert reviews were generally supportive of Dr. S’s care, based on the records. Those vascular surgery and plastic surgery consultants agreed, however, that the case would turn on whether the arbitrators believed Dr. S or the patient as to what had been promised. The arbitration panel found in favor of Dr. S.

Of course, all surgeons should attempt to obtain a “pleasing” result for their patients. When explaining their plan, however, physicians should take care that patients don’t take their words as meaning more than intended—especially with those patients who want a little something extra.


Gordon Ownby is CAP-MPT’s general counsel. Comments on Case of the Month may be directed to gownby@cap-mpt.com.