"But you said. . .": Making Promises to Patients About Their Outcomes

A patient’s expectations of their outcome, and any express or implied promise about such outcomes, falls within the field of warranty law. These types of claims involve two specific types of warranty issues: an “express warranty” and an “implied warranty”. Like breaches of privacy, warranty issues are not covered by your malpractice policy.

An express warranty is any overt promise by the doctor, or acceptance by the doctor of a patient’s desired outcome. This is frequently established by the doctor’s use of a photograph that the patient brings in while seeking a certain result from their procedure; the use of such materials by patients is extremely common, and poses a risk to doctors that agree to use such materials. To the dismay of your defense lawyer, it is not unusual for doctors to even include such photographs in the patient’s medical record.

Through widespread use of digital marketing materials, patients increasingly expect to see the potential positive outcome of the procedures that are available to them. Given the technology available to manipulate patient photographs and demonstrate various possible outcomes of cosmetic surgical procedures, there is an understandable motivation for doctors to show prospective patients the potential benefits of certain procedures.

Although visual aids are useful to help educate a patient about a procedure, and to help guide their expectations, doctors must be vigilant not to make statements that can be perceived as a guarantee of a certain result. You can use such visual aids to inform your patients about their procedure, but make sure that you have a disclaimer concerning the visual aids that they are not a guarantee of any specific outcome, and document your discussions with the patient describing the realistic expectations that they should have for the procedure.

Physicians agree that they cannot make any warranty or guarantees of a certain result; among other things, the patient may have underlying issues which prevent any such outcome, and the patient’s compliance with post-operative care and the patient’s individual healing process is out of the doctor’s control. But in seeking to reassure a patient of the benefits of a procedure, a doctor may inadvertently cross the line of an express warranty and promise of an expected outcome.

The implied warranty claim is more difficult to defend, and is equally difficult to prevent in your practice. These claims do not arise from the explicit medical record or representations that you might make, but instead frequently arise from a patient’s understanding of their post-operative expectations. For example, a patient may expect to return to work or attend an important function or event a few weeks after major surgery. Though it is possible that the patient may heal well enough to return to work or to attend their event, can a doctor guarantee that they will be able to do so?

Such misunderstandings are the genesis of implied warranty claims by patients. The patient discloses a fact or expectation to you during their consult, and the failure to properly deal with that fact gives rise to a later implied warranty claim. Physicians should be careful to disclose and document the many reasons that might interfere with the patient’s expectations. This may include advising the patient to change the date of their surgery, or to take other precautions during their pre- and post-operative care. Failing to address and document those discussions can lead to a claim that you are responsible for any financial losses, emotional distress or embarrassment or other damages that the patient may claim.

This scenario is becoming more common as patients seek faster recoveries, add their own routines to their post-operative care, and add additional procedures to their original surgical consult. You may face a claim for an implied warranty related to the time estimate for their return to normal activity, for financial estimates and costs, concerning the course of their future care and treatments, and claims relating to their results and expectations.

Make sure the entire office team discusses patient comments and interactions; it is not uncommon to have a patient disclose their constraints or requirements to a receptionist or coordinator and never mention them to the surgeon. Include a paragraph in your informed consent document as well as your financial agreement that no warranties express or implied are present and that the patient understands and agrees that no such promise has been made by you.