Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

Botox? Smooth out the risks

Q: Some patients want me to start giving Botox injections to smooth out their facial wrinkles. What are the legal risks of a primary care physician doing this, or other minor cosmetic procedures?

A: Interest in cosmetic medicine is high because many physicians want to make some extra money as reimbursement rates for other areas of practice continue to shrivel. There's also the understandable lure of collecting directly from the patient, since few of these procedures are covered by insurance.

Plus, Botulinum Toxin injections are minimally invasive. The perceived simplicity and safety of these injections has led to the phenomenon of in-home "Botox parties," modeled after Tupperware parties. They include a doctor, a dozen or so prospective patients, and a cheese platter. "Buyers" just leave the party, have the injection done in the next room, and rejoin the group.

The most common clinical risk is drooping eyes from extravasation of the injected fluids, although loss of facial expression and even drooling can result as well.

The legal risk to primary care physicians involves the standard of care. If something goes wrong with the Botox injection or any other cosmetic procedure, you'd be held to the same standard as a dermatologist or plastic surgeon. Plaintiffs' attorneys will stress to jurors that you weren't qualified to perform the procedure but did so anyway just for a few extra bucks. While even an experienced plastic surgeon might get a bad result, you could be regarded with greater suspicion if jurors felt you were practicing outside your specialty.

It would be helpful if you could show that you'd received some additional training in the procedure. Although training in medication administration is far less common than training in use of medical devices, it's offered by Botox suppliers. Check out www.Botox.com for a listing of educational workshops in your area, or the names of other physicians willing to demonstrate the process. Inquire whether you'll get a certificate after the training. While it doesn't hold the same status as board certification, it may help in front of a jury.

If you do get sued, understand that there might be different criteria for measuring damages. In cosmetic medicine, the difference between what the patient was expecting (and will claim was promised) and the actual result will be alleged as damages. So subjective judgments will become part of any lawsuit based on cosmetic medicine.

That's why it's imperative to avoid guarantees at all costs. Sure, you want to tell the patient that she will have a perfect result and no problems, but don't. If you promise certain results, the patient's claim could include breach of contract as well as malpractice. Then the statute of limitations could be longer—usually four years.

Even if you don't offer a guarantee, it's easy for the patient to misinterpret and hear one, anyway. So a thorough informed consent discussion is essential. Disclose to the patient all relevant information about the procedure's risks, benefits, and alternatives, and document the conversation. Be forthright in telling the patient that you are an internist by training, not a cosmetic specialist. Disclose the number of similar procedures you have performed. This will help limit your potential liability.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

Lee Johnson. Malpractice Consult.

Medical Economics

2002;20:65.