Unrealistic expectations and promises | aad.org
Unrealistic expectations and promises

Legally Speaking

Clifford Warren Lober

Dr. Lober is a dermatologist in practice in Florida and a partner in the law firm Lober, Brown, and Lober.

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The telephone rings again in Bryan’s law office. Neal, a dermatologist who is Bryan’s client, is calling back to get an answer to a question that remained when they last spoke. Bryan begins the conversation.

Bryan: Hello, Neal! I hope everything is going well for you.

Neal: Generally yes, but I need your advice on how to handle another situation. Ryan, a young man who is a patient of mine, needs surgery for a melanoma on his face and insists that he will absolutely not tolerate any scar whatsoever. He seems more concerned with the cosmetic outcome than having the best possible cure rate for his melanoma. What should I do?

Bryan: Are there any generally accepted alternative treatments that he could receive that would avoid or minimize the possibility of scarring?

Neal: No, because this is a deeply invasive melanoma. I’m afraid that failure to surgically remove the cancer could put his life in danger and I have explained that to him. [pagebreak]

Bryan: Neal, it sounds like this patient has unrealistic expectations. If you perform the surgery you will have a disgruntled patient at best and a complaint to the state Board of Medicine, defamatory comments on the Internet, and perhaps even an attempt to sue you at worst. I suggest that you explain why surgery is the best treatment in Ryan’s case and that, since all wounds heal by scar formation, there will be a scar that may or may not be visible.

Neal: I have already done that but all Ryan wants to talk about is the possibility of a scar.

Bryan: Then I would absolutely advise him to seek a second opinion from another board-certified dermatologist or comparably trained physician. I would not perform the surgery. Remember, less than 1 percent of your patients give you 99 percent of your aggravation. This patient has made it extremely clear that he will be unhappy with any scar. I also suggest that you send him a certified letter, return receipt requested, explaining what you have discussed and enclose a copy of his pathology report. This way there is a written record that he has been told the melanoma needs to be treated and that he has been advised to seek a second opinion. Hopefully Ryan’s expectations will become more reasonable when he receives similar advice from another physician. [pagebreak]

Neal: Should he decide to have surgery, Bryan, I really think I can promise him as fine a cosmetic result as any other surgeon would be able to achieve.

Bryan: Neal, whatever you do, never promise a result to Ryan or any other patient. If anything goes wrong the patient can sue you not only for malpractice but also for violating a contract, which is a separate legal action. There is only one thing you can ever promise a patient. 

Neal: What is that?

Bryan: You can promise to do your best. That’s what is expected and what you do anyway. Also avoid “puffery” or overly emphasizing the positive. You will never get in trouble if you promise less but deliver more. Finally, remember that the consent form you have the patient sign after advising him orally of expected risks and benefits should mention reasonably expected complications. In any event, I still recommend that you not perform surgery on this patient. Even if Ryan ultimately agrees to have surgery, it would seem this would be reluctantly so. This situation is a setup for an unhappy patient. [pagebreak]

Neal: I understand your recommendation that Ryan should see another dermatologist. What about suggesting that he see another specialist, such as a board-certified oncologist?

Bryan: You may want to do that as well. An oncologist could either recommend another treatment or reinforce your advice that surgery is his best alternative.

Neal: Can I call Ryan’s wife and discuss the situation with her?

Bryan: No, I would not do that. If you were to contact his wife you would need Ryan’s written permission to disclose his confidential medical information. You do not want to violate HIPAA or state privacy laws. Furthermore, you have no idea how either Ryan or his wife might respond if you go “behind his back” and contact his wife. You may simply make him more upset. [pagebreak]

Neal: Thanks, Bryan!

As soon as Bryan hangs up the telephone it rings again. It’s Annette, another dermatologist who is Bryan’s client.

Annette: Bryan, I’m so glad you’re in. I just received a call from my pathology lab and they told me that there was no specimen in the bottle that I sent them! What should I do?

Bryan: Annette, it’s a good thing you called. I will give you very specific advice next time

If you have any suggestions for topics to be discussed in this column, please email them to me at loberc@gmail.com. See the February 2013 issue of Dermatology World for disclaimers.

Key points

  1. Less than 1 percent of your patients will give you 99 percent of your aggravation. Avoiding patients with unrealistic expectations will minimize complaints to the state Board of Medicine, defamatory comments on the Internet, and perhaps even an attempt to sue you.
  2. Never promise anything other than your best efforts. Promise less, deliver more.
  3. When discussing treatment alternatives, avoid “puffery” or overemphasizing the positive.

 

Related Resources

Key points