Background:
The increasing patient demand for cosmetic surgeries and minimally invasive procedures has encouraged physicians without aesthetic surgery training accredited by the American Board of Medical Specialties to provide these services. This systematic review aims to determine the rate of out-of-scope practice in medical malpractice lawsuits involving cosmetic surgery or minimally invasive procedures performed by nonplastic surgeons.
Methods:
Our systematic review of the Westlaw legal database from 1979 to 2022 included 64 malpractice cases. Inclusion criteria were cosmetic surgeries or minimally invasive procedures in medical malpractice lawsuits not involving board-certified plastic surgeons. Out-of-scope was defined using the procedural competencies established by the American Council for Graduate Medical Education, the Commission on Dental Accreditation, and the Council of Podiatric Medical Education. Data on legal proceedings, provider credentials and board certification, surgical interventions, and legal outcomes were collected.
Results:
The majority of malpractice cases involving cosmetic surgeries or minimally invasive procedures occurred when providers were practicing out of scope (N = 34; 55.7%). The verdict was ruled in favor of the plaintiff (patient) in 34.4% of cases. Out-of-scope practice occurred most in family/internal medicine, no board certification, and obstetrics/gynecology (N = 4, N = 4, and N = 3, respectively). The most common allegation was permanent injury or disfigurement (N = 21; 21.4%). Plastic surgeons provided expert testimony 44.0% of the time.
Conclusion:
Our review of the Westlaw legal database suggests that the majority of nonplastic surgeon cosmetic malpractice cases may occur in the setting of out-of-scope practice.
Takeaways
Question: What is the rate of out-of-scope practice in medical malpractice lawsuits involving cosmetic surgery or minimally invasive procedures performed by nonplastic surgeons?
Findings: The majority of malpractice cases involving cosmetic surgeries or minimally invasive procedures occurred when nonplastic surgeon providers were practicing out of scope (N = 34; 55.7%).
Meaning: When physicians without plastic surgery board certification are faced with a malpractice lawsuit involving cosmetic surgeries or procedures, they are often practicing out of their accredited scope of training.
INTRODUCTION
Since the year 2000, the number of cosmetic surgeries and minimally invasive procedures performed by plastic surgeons has increased by 22% and 174%, respectively.1 The increasing demand for these services has created an economic environment hospitable to the growth of private practices offering cosmetic care, with or without qualifications accredited by the American Board of Medical Specialties.
Defining appropriate qualifications to perform cosmetic surgeries and minimally invasive procedures is fraught with financial and political controversy. A recent study examining the training backgrounds and rates of out-of-scope practice by members of the American Board of Cosmetic Surgery (ABCS) was met with significant criticism.2 Critiques included failure to acknowledge the adequacy of the plastic and reconstructive surgery training of ophthalmologists, the misrepresentation of the historical contribution of dermatology to plastic and reconstructive surgery, and an unfair comparison of the training standards set by the American Board of Plastic Surgery (ABPS) to those of the ABCS.3–5 In light of these critiques, the authors of the original study reiterated their finding that 62.6% of ABCS diplomats advertise surgical procedures that are outside the scope of their accredited residency training and emphasized their concern that unaccredited fellowships should not be considered an acceptable substitute to accredited training pathways to provide cosmetic surgical care.6–8
The lack of regulation on advertising makes it difficult for patients to differentiate accredited training from unaccredited training in cosmetic care. A recent survey of 5135 people found that the public majority believes that surgeons must be board-certified in plastic and reconstructive surgery to legally advertise themselves as a plastic surgeon.9 Despite this, 69.5% of ABCS-certified physicians advertise themselves as plastic surgeons on Facebook business pages even though cosmetic surgeons do not have equivalent training and have a higher rate of punitive actions by state medical boards.10–12 However, it is important to highlight that these studies have examined how cosmetic surgeons may misrepresent their qualifications or the scope of their services to the public, and not whether these misrepresentations have clinical or legal consequences.
Despite the evidence of cosmetic surgeries and procedures offered by cosmetic surgeons without accredited training in plastic surgery, the legal consequences of these services remain poorly understood.13–21 Therefore, the primary objective of this systematic review is to determine the rate of out-of-scope practice in medical malpractice lawsuits involving cosmetic surgeries or procedures performed providers without ABPS accredited training in plastic surgery and, secondarily, to characterize the malpractice lawsuits brought against these providers.
METHODS
Westlaw (Thomas Reuters) is a comprehensive legal database that includes case law from over 40,000 databases across the United States. Westlaw was searched to identify malpractice cases against cosmetic surgeons or providers (MD, DO, DDS). Searches were conducted with the assistance of a Westlaw Thomson Reuters reference attorney using a combination of the terms “malpractice,” “cosmetic surgeon,” “cosmetic surgery,” “cosmetic procedure,” “aesthetic surgery,” “aesthetic procedure,” and “aesthetic surgeon” to identify relevant malpractice cases in the medical litigation database without date restrictions. The data reported in this study were obtained from publicly available court records; therefore, the study is exempt from institutional review board approval.
Eligibility Criteria
The inclusion criteria required cases to have a physician, physician-organization, or hospital named as the defendant, a provider (MD, DO, DDS) whose residency training was not certified by the ABPS (ie, American Board of Medical Specialties accredited plastic surgery training), a cosmetic surgery or minimally invasive procedure performed, and malpractice as the cause of legal action. We excluded cases involving board-certified plastic surgeons (all cases would have been in scope), duplicates, cases where malpractice was not the cause of action, cases without a cosmetic surgery or procedure, and a case where the disputed care involved the anesthesia provided in the setting of cosmetic surgery (“other”). Cases settled before the filing of a lawsuit could not be included because the public availability of this information is limited.
Case Selection
The review process was conducted independently by two authors (S.M. and E.S.), and discrepancies were mediated through discussion. The initial search returned 536 legal cases. The legal summaries were manually screened to determine eligibility. After initial screening, 197 cases met the preliminary eligibility criteria. Of these, 133 were excluded during full-text analysis, leaving 64 cases eligible for data collection (Fig. 1).
Fig. 1.
Systematic review flowchart.
Explanatory and Outcome Variables
The cases were manually reviewed, and data were extracted and analyzed in a standardized fashion. Legal data included the plaintiff (patient, family member, representative, other), defendant (MD or DO, DDS, hospital group, private practice group, other), date of the initial case (first date reported for legal hearing), date of case finalization (date of case resolution), lawsuit jurisdiction (state or federal courts), geographic state, legal verdict [favoring plaintiff (patient) or defendant (provider)], settlement payout ($ USD), medical training of expert testimony, and the allegations by the plaintiff. Patient gender (man or woman) was recorded.
The accredited training [anesthesiology, dentistry, dermatology, emergency medicine, family or internal medicine, general surgery, obstetrics and gynecology (OB/GYN), oral and maxillofacial surgery (OMFS), ophthalmology, otolaryngology, podiatry, urology, no medical license], and board certification of the providers responsible for alleged malpractice were collected. When credentialing information was unavailable in Westlaw legal documentation, credentials were validated using the credential certification tools on official board websites. If the credentials could not be validated on official board websites, then secondary sources (employer websites, newspaper articles, Healthgrades, LinkedIn) were used to corroborate formal training.
Clinical data included practice setting (academic hospital, community hospital, outpatient surgery center, private practice, other), surgical or cosmetic procedures performed, procedure category (aesthetic genital surgery, body lifts, breast, face and neck, fat reduction, male-specific, minimally invasive, unspecified cosmetic surgery or procedure, other), and the date of patient care administered.
Assessing Scope of Practice
Within each legal case, the provider’s adherence to scope of practice was assessed by comparing the performed cosmetic surgeries or procedures with the core procedural competencies established by their respective discipline’s accrediting body (the Accreditation Council for Graduate Medical Education minimum procedural competencies, the standards set by the Commission on Dental Accreditation, and the Council on Podiatric Medical Education).22–34 (See table, Supplemental Digital Content 1, which displays the scope of practice determination for all included cosmetic malpractice cases. http://links.lww.com/PRSGO/C449.) The scope of cosmetic surgeries or procedures performed by physicians with a certification by the ABCS was evaluated based on the provider’s accredited residency training, given that the American Board of Medical Specialties has not accredited the ABCS (Table 1).
Table 1.
Out-of-scope Cosmetic Surgeries and Procedures by Medical Discipline as Defined by Accrediting Bodies
| Discipline | Out-of-scope Cosmetic Surgeries and Procedures |
|---|---|
| Anesthesiology | Any cosmetic surgery or procedure |
| Dermatology | Cosmetic surgeries or procedures not including lasers, Botox, soft tissue augmentation or skin fillers, or nail procedures |
| Emergency medicine | Any cosmetic surgery or procedure |
| Family medicine | Any cosmetic surgery or procedure |
| General surgery | Any cosmetic surgery or procedure |
| Internal medicine | Any cosmetic surgery or procedure |
| Obstetrics/gynecology | Any cosmetic surgery or procedure |
| OMFS | Any cosmetic surgery or procedure below the neck |
| Ophthalmology | Cosmetic surgeries or procedures outside the periorbital region |
| Otolaryngology | Any cosmetic surgery or procedure below the neck |
| Podiatry | Any cosmetic surgery or procedure above the ankle |
| Urology | Any cosmetic surgery or procedure not involving the genitourinary system |
OMFS, oral and maxillofacial surgery.
Statistical Analysis
Categorical data are described as frequencies and percentages. Normally distributed continuous data are described as means ± standard deviations and nonnormally distributed data as medians and ranges. Statistical significance was not assessed.
RESULTS
Legal Proceedings and Case Outcomes
The most common plaintiff was the patient (93.8%), followed by a family member of the patient (3.1%), a representative of the patient (1.6%), or other representative (1.6%). The most common defendant was an MD or DO (59.1%), followed by a private practice group (30.1%), DDS (5.4%), hospital group (4.3%), and other [1.1% (Table 2)].
Table 2.
Descriptive Statistics of Legal Proceedings and Case Outcomes in Nonplastic Surgeon Cosmetic Malpractice Cases
| Legal information | |
|---|---|
| Plaintiffs, n (%) | |
| Patients | 60 (93.8) |
| Family member of patient | 2 (3.1) |
| Representative of patient | 1 (1.6) |
| Other | 1 (1.6) |
| Total | 64 (100) |
| Defendants, n (%) | |
| MD or DO | 55 (59.1) |
| Private practice group | 28 (30.1) |
| DDS | 5 (5.4) |
| Hospital group | 4 (4.3) |
| Other | 1 (1.1) |
| Total* | 93 (100) |
| Lawsuit jurisdiction, n (%) | |
| State | 63 (98.4) |
| Federal | 1 (1.6) |
| Total | 64 (100) |
| Timing of case (mo), median (range) | |
| From patient care to initial case date | 34 (6 – 107) |
| From initial case date to verdict | 35 (4 – 143) |
| Expert testimony for legal proceedings, n (%) † | |
| Plastic surgeon (ABPS) | 22 (44.0) |
| Ophthalmologist or oculoplastic surgeon | 8 (16.0) |
| Otolaryngologist or facial PRS | 4 (8.0) |
| Dermatologist | 4 (8.0) |
| Vascular surgeon | 2 (4.0) |
| ABCS surgeon‡ | 1 (2.0) |
| Anesthesiologist | 1 (2.0) |
| Family medicine | 1 (2.0) |
| Dentist | 1 (2.0) |
| Hematologist or oncologist | 1 (2.0) |
| Internist | 1 (2.0) |
| Neurologist | 1 (2.0) |
| Neurosurgeon | 1 (2.0) |
| Pathologist | 1 (2.0) |
| Psychiatrist | 1 (2.0) |
| Total | 50 (100) |
| Legal verdict, n (%) | |
| Provider (defendant) | 40 (60.9) |
| Patient (plaintiff) | 22 (34.4) |
| Not reported | 3 (4.7) |
| Total | 64 (100) |
Legal cases often had more than one defendant.
Not all publicly available case documents reported expert testimony.
Ninety-eight percent of cases were within state jurisdiction, whereas 1.6% were within federal jurisdiction. The median interval between the date of patient care and the date of the initial case, and the date of the initial case and the verdict were 34 and 35 months, respectively. The most common specialties called upon for expert testimony were plastic surgeons (44.0%), ophthalmologists or oculoplastic surgeons (16.0%), otolaryngologists or facial plastic and reconstructive surgeons (8.0%), and dermatologists (4.0%).
Most legal verdicts favored the physician (60.9%), and 34.4% were in favor of the patient. The median settlement payout was $340,520 ($125,000–$2,868,086). The first decade of the 21st century had the highest number of malpractice cases (by date of initial case hearing), followed by 2010–2019 and 1990–1999 (Fig. 2). Texas, New York, and California had the highest number of malpractice cases (Fig. 3).
Fig. 2.
Distribution of state and federal malpractice cases for Non-ABPS cosmetic procedures and surgeries by decade.
Fig. 3.
Geographic distribution of cosmetic surgery and procedure malpractice lawsuits against Non-ABPS certified physicians and healthcare groups.
Malpractice Allegations, Cosmetic Surgeries and Procedures, and Practice Settings
Permanent injury or disfigurement was the most common allegation brought against a provider (21.4%), followed by failure to obtain informed consent (14.3%), acute postoperative complication (12.1%), breach in standard of care (11.2%), and poor cosmetic outcome (8.2%) (Table 3). The face and neck were the most common procedure category (45.3%), followed by breast (15.6%), fat reduction (15.6%), and minimally invasive cosmetic procedures (10.9%). Most malpractice cases resulted from care administered in a private practice setting (46.9%) and outpatient surgery centers (21.9%), with 7.8% in community hospitals and 1.6% in academic hospitals. Eighty-one percent of patients were women (Table 4).
Table 3.
Plaintiff Allegations Against Provider in Nonplastic Surgeon Cosmetic Cases
| Allegation | N (%) |
|---|---|
| Permanent injury or disfigurement | 21 (21.4) |
| Failure to obtain informed consent | 14 (14.3) |
| Acute postoperative complication | 12 (12.1) |
| Breach in standard of care | 11 (11.2) |
| Poor cosmetic outcome | 8 (8.2) |
| Incorrect complication management | 7 (7.1) |
| Misrepresentation of credentials | 6 (6.1) |
| Exceeding scope of practice | 4 (4.1) |
| Death | 3 (3.1) |
| Intentional infliction of physical harm or emotional distress | 3 (3.1) |
| Nonspecific medical malpractice | 3 (3.1) |
| Breach of contract | 2 (2.0) |
| Failure to use medical or surgical equipment correctly | 2 (2.0) |
| Inappropriate interaction between male physician and female patient | 1 (1.0) |
| Invalid licensure | 1 (1.0) |
| Misleading patient | 1 (1.0) |
Table 4.
The Procedure Categories, Practice Settings, and Patient Sex in Nonplastic Surgeon Cosmetic Malpractice Cases
| Procedure Category | N (%) | Practice Setting | N (%) | Patient Gender | N (%) |
|---|---|---|---|---|---|
| Face and neck | 29 (45.3) | Private practice | 30 (46.9) | Women | 52 (81.3) |
| Breast | 10 (15.6) | Outpatient surgery center | 14 (21.9) | Men | 11 (17.2) |
| Fat reduction | 10 (15.6) | Community hospital | 5 (7.8) | NR* | 1 (1.6) |
| Minimally invasive | 7 (10.9) | W | 1 (1.6) | Total | 64 (100) |
| Unspecified cosmetic surgery or procedure | 2 (3.1) | Other (Med Spa) | 1 (1.6) | ||
| Body lifts | 2 (3.1) | Unknown | 13 (20.3) | ||
| Other | 2 (3.1) | Total | 64 (100) | ||
| Aesthetic genital surgery | 1 (1.6) | ||||
| Male specific | 1 (1.6) | ||||
| Total | 64 (100) |
NR, not reported.
Practicing Out of Scope
Most cosmetic surgery or procedure malpractice cases occurred when healthcare providers practiced out of scope (55.7%). Although several of these groups have a low N, the specialties or categories that practiced out of scope in the majority of their malpractice cases were anesthesiology, emergency medicine, family or internal medicine, general surgery, OB/GYN, urology, no board certification, and no medical license. Dentists, dermatologists, otolaryngologists, OMFS, ophthalmologists, and podiatrists practiced out of scope in cosmetic malpractice cases less than 50% of the time (Table 5).
Table 5.
Distribution of Out-of-scope Practice in Malpractice Cases by Specialty*
| Specialty by Training | In-scope Cases (N) | Out-of-scope Cases (N) | Total Cases (N) | Out-of-scope Rate (%) |
|---|---|---|---|---|
| Anesthesiology | 0 | 1 | 1 | 100 |
| Dentistry | 1 | 0 | 1 | 0.0 |
| Dermatology | 4 | 2 | 6 | 33.3 |
| Emergency medicine | 0 | 2 | 2 | 100 |
| Family or internal medicine | 0 | 4 | 4 | 100 |
| General surgery | 2 | 5 | 7 | 71.4 |
| No board certification | 0 | 4 | 4 | 100 |
| No medical license | 0 | 1 | 1 | 100 |
| Obstetrics/gynecology | 0 | 3 | 3 | 100 |
| OMFS | 4 | 0 | 4 | 0.0 |
| Ophthalmology | 4 | 2 | 6 | 33.3 |
| Otolaryngology | 11 | 9 | 20 | 45.0 |
| Podiatrist | 1 | 0 | 1 | 0.0 |
| Urology | 0 | 1 | 1 | 100 |
| Total | 27 | 34 | 61 | 55.7 |
Insufficient information was available to make a determination in three cases. Plastic surgeons were not included because all examined cosmetic procedures would have been considered in scope.
DISCUSSION
This systematic review of malpractice cases involving cosmetic surgeries and minimally invasive procedures demonstrates that the majority of cosmetic malpractice cases arise when nonplastic surgeon providers are practicing out of scope. The most common allegation by patients is permanent injury or disfigurement, and courts predominantly rely on plastic surgeons for expert testimony even when the providers of concern are not plastic surgeons.
Our review of the Westlaw legal database revealed that a majority of malpractice cases involving cosmetic surgeries or procedures not performed by plastic surgeons occurred when a provider was practicing outside the scope of their accredited training. The specialties without procedural competencies in cosmetic surgeries or minimally invasive procedures accredited by the ACGME (anesthesiology, emergency medicine, family or internal medicine, general surgery, OB/GYN, urology, no board certification, and no medical license) account for most out-of-scope cases. However, specialties with accredited training for many cosmetic surgeries and procedures, such as otolaryngology and cosmetic dermatology, also produced many out-of-scope malpractice cases. In Ditto v. McCurdy, an otolaryngologist performed a breast augmentation that resulted in allegations of permanent injury, disfigurement, and misrepresentation of credentials, while in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, an ophthalmologist performed a facelift that resulted in permanent disfigurement.35,36 These cases highlight the severe consequences of out-of-scope care and may demonstrate a need for increased regulatory scrutiny of practices offering cosmetic surgery and procedures.
Given the possibility of such severe complications after surgeries or procedures, physicians have an ethical obligation to be transparent with their patients about their surgical scope of practice. A recent Gallup poll highlighted that healthcare providers, when compared with other professions, receive the highest honesty and ethical standards ratings by the general populace.37 For this reason, patients often accept a physician’s claim of cosmetic expertise without further inquiry. Of note, Shah et al found that the majority of respondents were uncomfortable with the idea of an obstetrician-gynecologist (92%) or family practice physician (93%) performing surgery to improve their appearance.9 Despite this, physicians in those fields are still able to recruit patients for cosmetic procedures as our findings demonstrate that both OB/GYN providers, as well as family medicine providers, practiced out of the scope of their accredited training in 100% of malpractice cases.
Direct injuries to a patient are the most common allegations prompting legal action. Examples of direct injury allegations include permanent injury or disfigurement, incorrect complication management, and breach in standard of care. Prior reviews on cosmetic surgery malpractice cases found that injury or disfigurement were the most common outcomes leading to lawsuits.13 This is consistent with our findings, which suggests that severe injuries are the most compelling reason for a patient to pursue legal action in cosmetic malpractice cases.
Private practices or outpatient surgery centers were the most common practice settings where cosmetic care led to malpractice litigation. The findings of prior studies examining the relationship between practice setting and litigation rates differ between countries and medical disciplines. In Denmark, a review of malpractice lawsuits against general practitioners found no association between practice settings and the frequency of litigation. Instead, there was a significant correlation between the practitioner’s patient roster length and the number of malpractice lawsuits.38 However, in the United States and Australia, private practice was the most common practice setting for cosmetic malpractice litigation.13,39 The most intuitive explanation for these findings is that private practice is the most common practice setting for plastic surgeons, which ultimately results in the highest rate of malpractice litigation involving cosmetic surgeries or procedures.40,41 Regardless of the provider’s training, the high rate of malpractice litigation in these practice settings highlights a need to scrutinize the accreditation of cosmetic surgery facilities and advocate for additional regulation of the facilities offering this care.42
The median time from the administration of patient care to the date of the initial lawsuit and from the initial lawsuit to case resolution were 34 and 35 months, respectively. Collectively, these timeframes approach 6 years from the date of injury to case resolution, which is greater than reports of 4 and 5 years from prior malpractice studies.43,44 The noncosmetic nature of the medical care provided in the studies by Studdert et al and Thiels et al may give some insight into the factors driving faster case resolution. However, a vast array of factors can contribute to the speed of a legal claim (ie, geographic state, number of appeals, year of lawsuit, court jurisdiction, etc.), making the underlying reasons for these differences unclear.
With New York, California, and Texas being the most common states for the cases in this study, their geographic distribution is similar to those published in other malpractice studies. An analysis of malpractice lawsuits involving residents of all specialties found that over half of all lawsuits originated in New York, Ohio, and Pennsylvania.17 However, California, Texas, Louisiana, and Illinois were also highlighted in the same study as having high malpractice litigation rates, paralleling literature examining plastic surgery and surgical resident malpractice.13,43 A factor contributing to the high rate of cosmetic surgery litigation can be explained, in part, by the exceptional demand for cosmetic care in these states. A recent study using Google searches as a proxy for cosmetic surgery demand found that California had the highest relative volume of Google searches, and found that New York and Texas also have relatively high demand.45,46 However, the rates of medical malpractice litigation involving cosmetic services do not always parallel the demand for these services. Despite being the state with the second highest rate of Google searches for plastic surgery, Florida only had two malpractice cases in our analysis, consistent with prior studies examining geographic distribution in medical malpractice.13,17 The unique medico-legal environment of Florida may serve as a potential explanation for this phenomenon; however, a recent study rated their legal environment as “fair” to physicians and highlighted that tort reform had been reinstated in recent years, which would only serve to cap noneconomic damages and not severely reduce the number of cosmetic surgery malpractice cases.47
This study is not without its limitations. First, the malpractice cases resolved privately before a trial could not be included in our analysis due to the limited public availability of this information. However, given that surgical malpractice cases go to court more often than other types of medical malpractice and that providers who believe in having provided appropriate care often benefit from going to trial, we do not anticipate that an investigation of cases resolved in a private setting would change our findings.48 Second, the definition of scope of practice remains controversial despite the procedural competencies clearly defined by the ACGME, Commission on Dental Accreditation, and the Council on Podiatric Medical Education. To increase methodological transparency, we have provided our adjudication of scope of practice for each legal case (Table 5 and Supplemental Digital Content 1, http://links.lww.com/PRSGO/C449). Third, although this review was performed in systematic fashion without deviation from our original protocol, the use of case law as our subject matter prevented a quality appraisal that would be used in a traditional systematic review, as quality appraisal is not applicable to legal texts. Fourth, although general inquiry regarding a comparison of outcomes data on board certified plastic surgeons and nonplastic surgeons may be desired, this question should be reserved for clinical data and not legal documentation. Therefore, this was not addressed in our study.
CONCLUSIONS
Our review of the Westlaw legal database suggests that the majority of nonplastic surgeon cosmetic malpractice cases may occur in the setting of out-of-scope practice. This suggests that patient safety may benefit from improved regulation of providers, private practices, and facilities offering cosmetic surgeries and minimally invasive procedures.
Supplementary Material
Footnotes
Disclosure: The authors have no financial interest to declare in relation to the content of this article.
Related Digital Media are available in the full-text version of the article on www.PRSGlobalOpen.com.
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