Handling a Legal Complaint

By Dr Askari Townshend / 01 Apr 2015

In the January issue of Aesthetics, Dr Askari Townshend argued the importance of a skilful and thorough approach to handling potential litigation. This month, he shares his personal experience of managing a legal complaint

In the January issue of Aesthetics, Dr Askari Townshend argued the importance of a skilful and thorough approach to handling potential litigation. This month, he shares his personal experience of managing a legal complaint

Hamilton Fraser, the UK’s largest cosmetic insurer, include ‘top tips on how to avoid a potential claim’ in the knowledge centre1 on its website:

  1. Keep detailed patient notes
  2. Keep hold of your patient notes
  3. Assess your clients carefully
  4. Obtain a full medical history from the patient
  5. Patient consent
  6. Follow product guidelines
  7. Record settings
  8. Encourage patient to follow guidance
  9. Patient literature
  10. Take before and after photos

All of these are important to follow and will reduce your chance of facing a claim, but bear in mind that they will not eliminate the risk – as I have found out to my cost.

After opening my own clinic in 2008, patients that I had previously treated followed me. One lady was happy to travel a more than 100 mile-round trip for injectable treatments, which I felt was a compliment to my skills. After a thorough consultation with this particular patient, we agreed on Intense Pulsed Light (IPL) treatment for her mild rosacea. Before conducting the procedure I discussed each aspect of the consent form with the patient, which she signed, took good photographs of her condition and performed a test patch. When she attended the clinic for her rosacea treatments, photographs were taken on each occasion and a questionnaire on change in medical history was completed.

The first four treatments with incremental increases in energy produced excellent results. A very small blister did appear after the second treatment, but this resolved without consequence. For the fifth treatment, I increased the energy by one joule (the smallest increment) – this is normal practice as the target chromophore is reduced by the success of previous treatments. The next day, my patient contacted me to report that, after treatment, her face had felt hotter than usual and had developed blisters, also experiencing a significant amount of swelling. Without my knowledge, she had attended her local A&E department where she was treated with prednisolone and a topical antibiotic. Treating patients that are not local is challenging when there are complications. Although using modern technology, such as smart phones, to send and receive photographs or video calls are useful, digital communication is no replacement for face-to-face assessment, being able to support and provide necessary treatment or prescriptions. In addition, it is less likely that you will have colleagues that you can call upon or refer to.

I gave my patient lengthy advice over the phone and asked her to keep me informed of her progress. The next day things had not settled and were, perhaps, even worse. She visited her GP and was referred to a dermatologist who saw her twice in two days and prescribed oral antibiotics to treat the complication. During this time I tried to keep in touch by phone, text and email, however, after a few days, she stopped responding to me completely.

Never before (or since) have I come across such a violent reaction to a light-based treatment from such a small change in settings. It was especially unexpected as my patient had received several previous treatments, at greater energies than the one that had caused her blister, with no significant problems. My patient was adamant that there had been no recent sun exposure, changes in medical history or medication that could have contributed to the abnormal response.

I immediately stopped using my IPL system and cancelled all booked treatments. The self-test used to diagnose any problems with the device was uneventful and the company engineer found no faults after conducting a full service. I contacted the company’s trainer and two other national experts who used the same system but none could shed any light on why this had happened. Once my device received the all clear I started using it again, very cautiously to begin with, and found no problem with any other treatments. I informed the Health Care Commission (as the Care Quality Commission (CQC) was known then) and my insurer. With no channels of communication, there was nothing more that I could do to help my patient, which meant I could only wait and hope that all was healing well.

I received a formal letter of complaint four months later, to which I replied expressing my regret at what had happened and enquired what outcome she hoped for in order to resolve the complaint. The patient had seen a dermatologist who had recommended a course of laser treatment to correct minor scarring. She had also discussed the case with a solicitor and asked for £9,000 in compensation. Even if I had wanted to, I didn’t have the money to pay this. Having discussed this with my insurer I offered a fraction of this amount, which was declined. The excess on my insurance was £1,500, so offering significantly more than this wasn’t practical. After the first flurry of solicitor letters encouraging me to admit liability (something you must not do without discussing with your insurer first as it may be against the policy requirements) we didn’t hear anything for more than a year. I thought that perhaps the solicitors had recognised the quality of my notes and consent process and had decided not to pursue the case. This was optimistic as three years after the procedure had taken place, her solicitors were in touch once again.

My solicitors felt that there was a weakness in our case as I had increased the energy of the treatment without a prior test patch. Some practitioners advocate test patches at the end of each treatment, though, in reality, this is not a good verification of treatment response. A single shot is not comparable to the heat generated from a full treatment – of course this is not to be confused with test patches before the first treatment, or after a significant change in settings, which are vital. This issue had been discussed at a British Medical Laser Association (BMLA) meeting I had attended after the incident, which found that the majority of members – if not all – did not routinely test patch before every minor change of settings. Despite this, my solicitor felt that a judge may rule that a test patch could have avoided the injuries caused – especially as judges are not always sympathetic towards our speciality. This was a disappointment as I felt that I had done all that I could to ensure a safe treatment, and had not been able to find any practitioner that felt otherwise.

The result of the process, drawn out across four years, was a payout to my patient of £7,000, with an additional £16,000 of legal costs. The financial cost to me was a £1,500 excess fee and an increase in my premiums, which no doubt will take some years to normalise. Legal complaints are a stressful time for all concerned and can last many months, if not years. During this time it is important to keep in close contact with your insurer, especially before communicating with your patient, to ensure that you do not do anything to weaken your case or invalidate your cover. Solicitor letters are often worrying and use language that may overstate their position. Try not to take the process as a personal or professional attack – a successful claim from a patient is not always a sign that you have acted improperly in any way. Treat within your skill set, with care and diligence, and document every treatment as if a complication is expected. Even if you do this, you may well find yourself having to go through the claims process – but at least you will have protected yourself as best as you can. 

References

  1. Hamilton Fraser Cosmetic Insurance, ‘Our top tips on how to avoid a potential claim’, Resources & Guides (2015) http://cosmetic-insurance.com/wp-content/uploads/2013/07/hfisc_3721-A52pp-TopTips-v1.pdf Last accessed: 18 February 2015. 

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