Face up to the real risk of being sued

Lawyer Deborah Pyzer has some advice for cosmetic practitioners servicing the quest for supermodel looks.

In the post-Zoom era, many of us now spend several hours a day looking at our own reflections in a computer screen during meetings held via video-conferencing as we have moved towards more remote ways of working. 

It is therefore unsurprising that, in 2020, there was a 57% increase reported in email and web inquiries for cosmetic treatment. 

In a world governed by social media and celebrity culture, with the ready availability of professional airbrushing or quickly-applied filters, it is no wonder that people want their natural appearance to be aesthetically enhanced to match what they see across social and popular media.

In addition to the risks and complications of treatment set out on the patient consent form, there is one risk that is less widely recognised for the aesthetic/cosmetic practitioner and that is litigation. 

The potential for a legal claim arising out of cosmetic treatment has recently shot to the limelight with the news of settlement of supermodel Linda Evangelista’s CoolSculpting* claim. 

A question that may be on some practitioners’ minds is ‘what can I do to reduce the chances of a claim being brought against me?’ 

From our experience of managing complaints and claims arising out of aesthetic treatment, here is our advice:

1Trust your instinct and watch out for ‘red flags’

It is important to be aware that not all clients are suitable candidates for procedures. 

With hindsight, we often hear practitioners saying that they should have acted on signs that the client was not likely to be happy with the outcome of treatment. 

Identifying a client’s reasons for seeking treatment is key. Explore their levels of anxiety around their appearance before offering treatment. 

Asymmetry and varying results are recognised risks of aesthetic and cosmetic treatment, and a client that has severe underlying anxiety about their appearance is more likely to be dissatisfied with the outcome of a procedure that is known to have variable effects.

2Ensure your written consent documentation is clear and comprehensive, and that you provide clients with a thorough explanation of the risks of treatment before proceeding. 

A client is less likely to be dissatisfied with treatment if they understand that the complication they are experiencing was a recognised risk, which they clearly understood in advance of agreeing to treatment. 

In practice, consent forms can become a tick-box exercise or, worse, a client may sign the consent form without having actually read it. It is important to have a face-to-face discussion of the risks with your client and ensure they have sufficient opportunity to digest the risks and ask any questions. 

In our experience, consent forms can also be missing some recognised risks of treatment and it is important to review and update your consent forms to ensure they include all relevant risks. 

You may wish to compare your consent form with practitioner colleagues or we are happy to provide advice on review of your consent forms.  

3Seek advice sooner rather than later

In the event of complications or client complaints, do not delay in notifying your insurers. Seek advice at an early stage to help you to manage your relationship with your client. 

The nature of the relationship between an aesthetic or cosmetic practitioner and their client is unique and entirely different to those practising in a traditional medical setting. 

There is often a temptation for the practitioner to try to do everything in their power to keep the client happy, whether by offering the patient a refund or offering repeat clinic follow-up appointments to discuss complications. 

We recommend making contact with your insurers before taking these steps: there is a risk of policy coverage being declined due to late notification or payments being made without insurers’ agreement. 

When we are instructed by your insurers, we are able to provide documentation to go alongside any offer of a refund to ensure that any payment accepted by the client is in ‘full and final settlement’ of any future claim arising from the same injury and we can provide practitioners with hands-on advice and support with managing tricky clients.

Deborah Pyzer (right) is a solicitor in the clinical risk department at Bevan Brittan LLP. 

She advises both public and private sector clients in a variety of clinical negligence/medical malpractice claims. She has acted for independent practitioners and clinics/practices in claims concerning aesthetic practitioners, cosmetic and ophthalmic surgery and is experienced in managing psychiatric, orthopaedic, dental and obstetric claims

* This article was first published on the Bevan Brittan website and is reproduced with permission