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    Can scarring lead to a negligence lawsuit?

     

    Dr. Laser has been doing laser procedures for more than a decade. He has a great reputation and thousands of happy patients. Two years ago he performed a laser procedure on a patient who unfortunately scarred afterward. The procedure was undertaken in the same manner as hundreds of other similar procedures performed by Dr. Laser. He also obtained a signed consent form from his patient warning her about the risk of scarring.

    The patient sues Dr. Laser, claiming he was negligent in inducing her scar. She claims that causing a scar is not within the standard of care and demands $1 million for this incident. Dr. Laser is mystified. Was he negligent? Did he perform within the standard of care?

    Four elements of negligence

    Any analysis of physician negligence must first begin with a legal description of the elements of negligence. There are four required elements for a cause of action in negligence. They are: duty, breach of duty, causation and damages. The suing plaintiff must show the presence of all four elements to be successful in her claim.

    The duty of a physician performing cutaneous laser surgery is to perform that cutaneous laser procedure in accordance with the standard of care. Although the elements of a cause of action in negligence are derived from formal legal textbooks, the standard of care is not necessarily derived from some well-known textbook. It is also not articulated by any judge. The standard of care is defined by some as whatever an expert witness says it is, and what a jury will believe.

    In a case against any dermatologist preforming a laser procedure, the physician must have the knowledge and skill ordinarily possessed by a specialist in that field, and have used the care and skill ordinarily possessed by a specialist in that field in the same or similar locality under similar circumstances. A failure to fulfill such a duty may lead to loss of a lawsuit by the dermatologist.

    If the jury accepts the suggestion that Dr. Laser mismanaged the case and that the negligence led to damage of the patient, then liability will ensue. Conversely, if the jury believes an expert who testifies for a defendant doctor, then the standard of care in that particular case has been met.

    Meeting standard of care

    In this view, the standard of care is a pragmatic concept, decided case-by case, and based on the testimony of an expert physician. The dermatologist is expected to perform a laser procedure in a manner of a reasonable physician. He need not be the best in his field; he need only perform the procedure in a manner that is considered by an objective standard as reasonable.

    It is important to note that where there are two or more recognized methods of treating the same condition, a physician does not fall below the standard of care by using any of the acceptable methods even if one method turns out to be less effective than another method. Finally, in many jurisdictions, an unfavorable result due to an “error in judgment” by a physician is not in and of itself a violation of the standard of care if the physician acted appropriately prior to exercising his professional judgment. The same concept would apply to a complication. The fact that a complication occurred does not de facto mean there was negligence.  

    Evidence of the standard of care in a specific malpractice case includes laws, regulations and guidelines for practice — which represent a consensus among professionals on a topic involving diagnosis or treatment — and the medical literature including peer-reviewed articles and authoritative texts. In addition, obviously, the view of an expert is crucial. Although the standard of care may vary from state to state, it is typically defined as a national standard by the profession at large.

    Most commonly for litigation purposes, expert witnesses articulate the standard of care. The basis of the expert witness, and therefore the origin of the standard of care, is grounded in the following:

    1)    The witness’ personal practice; and/or

    2)    The practice of others that he has observed in his experience; and/or

    3)    Medical literature in recognized publications; and/or

    4)    Statutes and/or legislative rules; and/or

    5)    Courses where the subject is discussed and taught in a well-defined manner.

    The standard of care is the way in which the majority of the physicians in a similar medical community would practice. It is the method by which other laser physicians deal with their daily performance of laser surgery. If, in fact, the expert herself does not practice like the majority of other physicians, then the expert will have a difficult time explaining why the majority of the medical community does not practice according to her ways.

    Nothing stops Dr. Laser from being sued. If has practiced under a reasonable standard of care, however, he is not likely to lose the lawsuit.

    Subscribe to Dermatology Times to get monthly news and analysis for today's skincare specialists.

    GoldbergDavid.jpg
    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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