Patient Files Board Complaint After “Poor Result” With Dermal Fillers 

Underlying Facts

Dr. R is a single-degree, board-certified, oral and maxillofacial surgeon, practicing in an affluent suburb of a mid-size city. She practices alone in a state-of-the-art facility. Of late, she began using multiple social media platforms to build her practice, with much emphasis on publicizing the fact that she is trained in using neurotoxin and dermal filler injections to improve facial esthetics. There were few, if any, other practitioners in the immediate area providing that treatment, so it was becoming an ever-growing aspect of her practice.

Upon seeing one of those social media postings, F, a 41-year-old, healthy male sales VP, presented to Dr. R’s office, seeking advice about, and possible treatment for, multiple areas of wrinkles, smile lines, and frown lines in the mid-facial region. F had been growing more and more self-conscious in recent days, feeling as though he looked older than his actual age. Dr. R believed that F was a good candidate for injectable fillers in the areas of concern (particularly the lips and commissure areas). She fully explained the procedure, F’s options, and the foreseeable risks involved, specifically pointing out that changes are often subtle, so he might not notice any major differences in his appearance. Dr. R fully documented what occurred at that visit, and took photographs to be maintained in the chart. After considering for a few days what Dr. R told him, F contacted the office and asked to be scheduled to receive the injections.

F excitedly came to the office for treatment. Dr. R performed the procedure smoothly and uneventfully. F experienced discomfort in the injected areas for a few days, but otherwise felt well. Each day, F looked in the mirror, expecting to see the changes that he had hoped for – markedly fewer lines and wrinkles – but he became more dissatisfied as time passed. Dr. R did not respond to F’s complaint in this regard to the office receptionist some 5 days after treatment. At his two-week post-treatment visit, F expressed his sentiments to Dr. R, who explained that she did not anticipate any additional changes of significance, as compared with how things then appeared.  

As instructed, F returned to the office in about 2 months. Still not happy with his appearance, his demeanor toward Dr. R changed for the worse. Dr. R apologized to F, saying that every patient responds to this treatment differently and has different expectations. This, according to Dr. R, would be F’s clinical endpoint for this round of treatment, but he should consider additional injections in 3-6 months. F immediately declined, saying that he did not want more treatment from Dr. R. F did not receive further related treatment from any practitioner.

Legal Action

Just days after that most recent visit to Dr. R, F contacted an attorney to inquire as to whether he could sue Dr. R for what F characterized as a “poor result.” The attorney told F that he would reach out to a practitioner who performed this type of treatment regularly and then get back to him. That follow-up discussion took place. Based upon what the attorney learned from the doctor he consulted, the benefits of even an ideal initial treatment would be fully gone by the time a case reached court. Therefore, Dr. R’s treatment would not be able to be evaluated practically by a jury. Additionally, the attorney advised F that the concepts of “beauty is in the eye of the beholder,” and a general lack of sympathy in that jurisdiction for patients seeking cosmetic procedures, would likely serve as negative factors against F. The attorney declined to accept F’s case for litigation.

But the attorney had done some research on the issue. He learned that, in the state in which Dr. R practiced, dentists are free to perform treatments as did Dr. R if there is a component that relates to the maxillofacial complex in a functional way. Unwilling to accept the news from his attorney that suing Dr. R was not a viable option, F filed a complaint against Dr. R with the state’s Dental Board. The complaint filed included before and after photographs, print-outs of Dr. R’s social media advertisements, and a copy of the office records that had been given to him by Dr. R’s office upon his request.

Dr. R was notified by the Board of the complaint, and given a time period within which to respond. She contacted her malpractice carrier and provided copies of the complaint and her office records for F. The carrier then assigned counsel to assist Dr. R with her defense of the complaint. Following hearings at which Dr. R was represented by her counsel, the Board determined that Dr. R was in compliance with the applicable regulation. With the guidance of her counsel, Dr. R had been able to clearly explain to the Board members why the treatment was designed to assist F’s oral and maxillofacial functioning, focusing on the potential impacts of lip incompetence. F’s complaint was dismissed.

Takeaways

Because the use of injectables (dermal fillers, neurotoxins) is a rapidly growing, and changing, area of oral surgery practice, practitioners should be aware of the Dental Practice Acts of the states in which they practice, not only for this area of practice, but generally as well. If in doubt, contacting their malpractice carrier for direction can provide a helpful picture.  

As this case study exemplifies, patients who present for treatment which they believe to be entirely cosmetic will be assessing their treatment based wholly upon their own subjective standards. And their personal views of a successful result might well differ from those of the practitioner.

As a frequent, although not universal, rule, patients who attempt to sue their oral surgeons for work they consider to be deficient become disenchanted with those practitioners to the extent that they might seek any means available to exact some form of payback. An argument can be made for that being the basis, or one of the bases, for Board complaints, whether in conjunction with malpractice lawsuits or as stand-alone actions. Board complaints and their potential impacts are often viewed as less significant than lawsuits, but the opposite is often the case.

Finally, Dr. R’s lack of response to F’s dissatisfaction during a post-procedure telephone call to the office staff member – whether because that staff member never advised Dr. R about it, or Dr. R simply opted not to contact F at the time – could have been a factor in F’s subsequent change in demeanor. Because patients who feel discounted by or unimportant in the eyes of their practitioners are more likely to initiate action against those doctors, timely and caring communication with patients having any negative concerns is a strong risk management tool that cannot be overstated. And office policy is best to ensure non-professional office staff members know not to take clinical decision-making into their own hands. There are situations when only the doctor should be giving information to patients, and an expression of a clinical problem or dissatisfaction is one of them. 

Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.