The Last Word: Record Keeping

By Dr Askari Townshend / 01 Jan 2015

Dr Askari Townshend argues the importance of a skilful and thorough approach to handling inevitable legal complaints

In the last decade of performing aesthetic treatments, I have had two patients take legal action against me. As I believe I have treated over 15,000 in this time, I don’t think I’m doing too badly. If you treat enough patients, regardless of how good you are, the nature of the aesthetics industry means that you will probably receive a letter from a solicitor at some point in your career. If you don’t, either you haven’t done enough treatments, or you’ve been extremely lucky. The fear of receiving one of these letters affects our practice, whether we admit it or not. A clear example of this is the detailed paperwork we often use when delivering a simple, safe and relatively comfortable procedure such as botulinum toxin. This kind of procedure often has a consent form far longer and more detailed than those I used to use in the NHS for painful operations that resulted in permanent scarring, risked serious complication or even death.

Although many of us call them patients (I now do this less and less), most of our aesthetic clients (implying a more intimate relationship than a ‘customer’ making a quick and simple transaction) are in good health. They are not seeking treatment for a medical complaint, but are making a decision as a consumer to access a paid-for service. In the NHS (which many of us trained and worked in, and still do) patients often do not have that choice – they are seeking medical assistance, which is free at the point of delivery. If they endure pain and suffering during this time, it is often accepted as a price worth paying in exchange for cure or improvement of their medical health. When seeking private, paid- for treatment that is often to simply improve appearance, the pain and suffering they are prepared to accept decreases dramatically. 
Most complaints are received by the practitioner or clinic in the first instance where, once again, the fear of the solicitor’s letter affects behaviour. In most cases, detailed and informed consent has been gained and a careful treatment performed. If a problem occurs, clients may decide that although they accepted the risk, they have changed their mind and want a refund. The potential damage to our reputations, headache of possible legal action and the loss of a client lead many to issue this refund. If you do, I would recommend being wary of setting a precedent and indemnifying the client, in addition to paying for medical liability insurance. The refund could also be interpreted as an admission of fault when we know that complications will always occur, regardless of care and skill. In reality, the refund is unlikely to protect reputation in any way – I suspect that these clients will share their experience regardless.
In my own practice, I rarely give refunds in these situations. I do all in my power to prevent and treat the complication, and to provide the client with all the support (and more) that should be expected of a diligent and caring medical professional – this is part of the service we should all offer and feel a professional and moral obligation to provide. In addition, dealing with and resolving a complaint in a compassionate and empathetic manner is something we should all do for our clients. This is crucial in bringing the matter to an amicable conclusion. Do this poorly and do not be surprised to receive that letter containing a legal complaint, which may well come months (or even years) after you have forgotten about it. Indeed, it is possible to receive this letter even when you thought an amicable conclusion had been achieved. 
When complications or complaints arise, it is vital to carefully document the entire process, including all communications (such as calling and leaving a message if there is no answer) both in writing and by taking photographic evidence of the problem. If the client then wishes to pursue a legal path, you should have all that you need to defend yourself. In my experience, patients rarely keep good records of their experience, though with the popularity of camera phones they will often have graphic evidence of any injury.
When receiving a complaint or legal letter, our human response is to feel hurt, attacked and then defensive. This is to be expected when you have done your very best to help someone who then pursues you for recompense. However, it is important to keep things in perspective: do not confuse the law and legal system with justice and truth – these things can often be quite different! In any event, it is extremely unlikely that the case is going to be thrashed out in front of a judge in a courtroom – out of court settlements avoid even bigger legal fees that can sometimes overshadow the payment to the claimant.
If a client has suffered unduly or unexpectedly after a treatment (regardless of how carefully or skilfully it was performed) they may well be entitled to compensation, and for this we shouldn’t begrudge them. Stating complications clearly on a signed consent form doesn’t mean that you are able to avoid all future legal recourse. These situations are why you pay for medical liability insurance – just ensure that you have all of the information needed to enable your team to represent you to the best of their ability.
You may be the best, most thoughtful practitioner, and yet still receive that solicitor’s letter. This in no way reflects on your skill or practice. It is vital to bear this in mind if you do find yourself in the position that I was in, reading the dreaded letter. Thorough documentation and providing your client with the careful care and support required will mean that this kind of incident is dealt with correctly and efficiently, ensuring the best outcome for both parties. 

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