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Med-mal work gives surgeon insight into importance of communication

Years of experience as an expert witness in medical malpractice matters for both sides of the court has given Toronto facial plastic surgeon Dr. David Ellis a unique insight into how to ensure patient satisfaction.

“Through my court experience — where I have appeared for the defence and prosecution of doctors — I have learned much about relationships between doctor and patient and how they can break down,” says Dr. Ellis, a University of Toronto otolaryngology professor and founder of The Art of Facial Surgery clinic.

Dr. Ellis tells AdvocateDaily.com that by testifying in a variety of legal matters from both angles, he has noticed the main trend that has emerged is that miscommunication is the root of most complaints.

"The breakdown between patient and doctor usually starts from a misunderstanding of what the doctor is saying and the expectations of the patient of the results they possibly can get," says Dr. Ellis, who is frequently called upon to correct the work of other surgeons.

He says the problem that most often arises from that primary misunderstanding of what the doctor has said, is that expectations can be "unreasonable."

“When deciding on a surgical procedure for cosmetic reasons, improvement — not perfection — is the goal,” says Dr. Ellis, who teaches that surgeons must enforce that message with their patients.

But, while perfection is impossible, the key message is that “significant improvement is almost always seen," he says. 

If the patient goes into surgery with unreasonable expectations, it “can lead to a total breakdown in the surgeon-patient relationship,” warns Dr. Ellis.

As an expert witness for more than 15 years, he has reviewed many cases where that’s happened and it’s reinforced the importance of pre-surgical discussions. In his busy clinic, the seasoned surgeon says he makes a point of being thorough with his own patients in explaining the limitations of surgery and the possible complications.

Sometimes, patients are so focused on the desired outcome that they pay little attention to what can go wrong, says Dr. Ellis, who believes it is up to him to recognize when a client is not absorbing the message.

To that end, he says he always makes it clear to his patients that while surgeons strive for the best outcome, there are no guarantees.

“Yes, there can be asymmetrical swelling, excessive bruising and infection. Sometimes these complications need to be treated by the operating surgeon," he says, and that should be made clear to the patient.

"That is why detailed discussion prior to the surgery is very important for the patient to fully understand the type of results that may occur," he says.

Dr. Ellis further advises that patients should take the time to understand all of the potential pitfalls because they don't always have legal recourse.

For example, he says he once testified in a case where a forehead lift resulted in a wide scar. The patient sued, despite having signed a consent form that indicated there was a possibility of “poor scar results."

The court found that the surgeon had acted according to the standard of care for the province and the patient had no claim.

“Patients need to understand that a poor result doesn’t mean they can successfully sue the doctor in those circumstances,” Dr. Ellis says.

Meanwhile, he says, "The medical evidence is always important in a malpractice case. How to interpret the evidence is the role of the expert witness.

 “I look at it objectively and without emotion,” Dr. Ellis says. “If a surgeon did something incorrectly, he should be held responsible."

By seeing via the court process how the changes in the relationship between the surgeon and the patient can occur, Dr. Ellis says he ensures in his own practice that he is thorough in explaining the details of the post-surgical period and how unwanted results can occur.

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