Scarring in Plastic Surgery Medicolegal Reporting
by Mr J M Porter, MS, FRCS, FRCS (Plast) Consultant in Plastic, Reconstructive and Hand Surgery
A plastic surgeon, working as an expert witness, can expect to be instructed on a diverse range of clinical problems. Approximately 70% of medicolegal reports in plastic surgery require the expert witness to engage with the issues of scarring and to provide the Court with an opinion.
In some instructions the presence of a scar may have generated the request for an expert opinion. In other cases, the scar may be drawn to the attention of the expert by the Claimant, or the expert may come to the opinion that the issues surrounding the scar should be brought to the attention of the Court. It is the author’s recent experience, that an opinion on scarring is required in 71 to 72% of personal injury reports and 54% of clinical negligence reports. Scarring is a theme which unifies medicolegal problems, as different as hand surgery, breast surgery and major road accidents.
Scarring and medicolegal plastic surgery.
Scars may be the direct result of a breach of duty of care, or be the result of surgery made necessary by the breach of duty. Scars may be caused by wounds, surgical incisions, burns and skin grafting or other reconstructive surgery. Scars after primary healing (uneventful healing of a stitched wound) and healing by second intention (spontaneous healing) in an infected wound, have different appearances. Scar quality varies between different parts of the body – an eyelid scar in a skin crease is usually inconspicuous, whereas a scar in the skin anterior to the knee or the front of the lower leg, will tend to be conspicuous. Scars may be associated with contour defects. Scars may be associated with, pain, numbness, hypersensitivity and other sensory disturbances Scar appearance evolves to a steady state, usually (but not invariably) in the first year after the accident or operation. The first phase of healing is the phase of inflammation: during this phase the skin around wound appears reddened, swollen and tender. This appearance is commonly diagnosed incorrectly as a wound infection. An attendance at Accident and Emergency or the General Practitioner’s surgery, can result in an unnecessary prescription for antibiotics and a wrong diagnosis of a wound infection appearing in the medical records. The Claimant will attend the expert thinking that the breach of duty was the cause of a wound infection.
In the second phase of wound healing, capillary blood vessels, fibroblasts and extracellular matrix are laid down within the wound. In the initial phase of repair, immature collagen results in a scar which is red and raised, the scar is remodelled with immature collagen being replaced with mature Type III collagen. Collagen is the main structural protein in the connective tissue of the body.
These changes within the wound are reflected in changes in the external appearance of the scar. The production of immature collagen results in a scar which is red and raised – this is a hypertrophic scar. As maturation of the scar proceeds, the scar remodels and gradually becomes flat and pale. This is scar resolution. In a keloid scar, the production of immature collagen is not ‘switched off’, the red prominence does not resolve and the immature collagen invades surrounding tissue. The management and prognosis of keloid and hypertrophic scars are different. Hypertrophic scars are often mistaken for keloid scars, a mistake which can cause incorrect advice to be given to the Court.
In black people, the long term evolution of scar appearance is less predictable. The scar may resolve to become pale and inconspicuous. The scarring may become permanently darker than the surrounding skin. In a minority of cases the scars may depigment and leave a disfiguring white patch: this is most like to occur after disorderly wound healing or after steroid injections to treat prominent hypertrophic or keloid scarring. Certain ethnic subgroups within Africa are prone to keloid scarring. It may not be possible for Plastic Surgeons in the United Kingdom to identify people from these sub groups, whose ancestors have come to the United Kingdom via the Americas. It is incorrect to say that all black people are prone to keloid scarring. The key characteristic of scarring in ethnic minority people in the United Kingdom is unpredictability.
An audit of 101 consecutive reports, required as a revalidation target for the author, (75 personal injury and 26 clinical negligence), showed that,
a) an opinion on scarring was requested in 71% of personal injury instructions and
b) scarring was a significant issue in 54% of clinical negligence reports.
A survey of the author’s last 25 personal injury reports (at the time of writing) showed that an opinion on scarring was required in 18 reports and that scarring was not an issue in seven reports. 6 clients said they were not worried about their scarring. Six clients stated that they were embarrassed by the scarring. One client admitted to hiding the scarring. Two clients said that their scars were insensate, two complained of contour defects, 3 of scar pigmentation or depigmentation and 2 of scar tightness. One client was worried about the scar. One client described pain with cold sensitivity in the scarring.
The Claimant’s perspective
When scarring is an issue, a thorough medicolegal case history requires the same time (or more) as a comparable case history, in an NHS plastic surgery clinic. The venue of the consultation should encourage the client to talk about themselves. The claimant (and the claimant’s solicitor) should expect the claimant to be accorded the same courtesies, which would be taken for granted in an NHS or private medical consultation. The interview should take place in a hospital outpatient clinic or private consulting rooms, with a chaperone available if necessary. If the Claimant is not a primary English speaker, the need for an interpreter should be anticipated, ideally by the solicitor or by the agency. The expert’s questions should not suggest an answer and the Claimant should be encouraged to express his or her feelings about the scarring.
The scar may be perceived differently by the Claimant, by the expert and by other people. A scar may be perceived by the Claimant as being conspicuous, while the scar is simultaneously being perceived by the expert witness as being near invisible. Scars can be approximately classified for the Court, as being visible at conversational distance, visible on close examination, or visible to the Claimant and to no one else. The Claimant’s legal advisors and expert witness should be aware, that the Claimant’s perception of the scarring may be different to their perception. Claimants may tell the examiner that they hate or loathe the scarring. Most Claimants will adopt a variety of stratagems to conceal the scarring from strangers. A forehead scar may be hidden by a fringe. Scars on the legs may preclude the Claimant from wearing shorts or skirts, even on holiday.
Claimants may tell the expert that they are unwilling to show the scarring to strangers, in situations such as the gym or the swimming pool. Some may even be unwilling for family members, children, or even to their partners or spouses to see their scars. Many claimants describe persistent and curious enquiries from other people. Claimants may fear that the presence of a scar will indicate to other people that they are ‘trouble’, for example at the door of a night club. Many claimants fear that a scar will create a negative impression at a job interview.
Claimants (and solicitors) may have unrealistic expectations of photographic evidence. Experts may be asked to view photographs of scars on poor quality paper, on mobile telephones and even as poor quality black and white photocopies. The photographs tend to be taken by family members and the author has on a number of occasions, been shown photographs of scars, taken by the Claimant as ‘selfies’. Solicitors need to advise their clients that wherever possible, clinical photographs should be taken professionally, by a medical photographer.
Clinical images should,
a) be dated,
b) should identify the subject of the image,
c) be evenly lighted,
d) should be in focus and
e) should be presented on A4 format, ideally in a portfolio.
Requirements for the Court
Reasonable requirements of the Court for expert evidence on scarring are,
a) an accurate diagnosis of the scarring,
b) a clear causal link between the scarring and the alleged breach of duty, using an appropriate legal test, (usually the but for test),
c) the effect of the scarring on the Claimant’s life,
d) the long term prognosis of the scarring and
e) the expert’s advice on the future management of the scarring.
In cases where multiple experts have been used, the plastic surgeon may be at the end of a queue of experts, from different specialties. A previous expert may have given an incorrect diagnosis, confusing hypertrophic and keloid scarring. Here the plastic surgeon will need to give a diagnosis without obfuscation, with an explanation of the reasoning behind the diagnosis, without an overt attempt to undermine the previous expert’s report.
If the scarring is the direct result of a wound caused by an accident, or incorrectly indicated and executed surgery, the causal relationship between scarring and breach of duty is straightforward. In other cases a plastic surgeon may be asked to give an opinion on a scar from an operation, made necessary by the breach of duty. Here the causal relationship between the breach of duty and the scar is less direct and the plastic surgeon will need to explain to the Court, the exact chain of events connecting the breach of duty and the scar.
The effect of the scarring on the Claimant’s life is established by a careful case history, using open questions. As further consequences of the scarring on the Claimant’s life emerge, these must be causally linked with the breach of duty, using an appropriate legal test, or the Court must be advised if no such link can be proven.
If the scar is found to be resolved on clinical examination, the plastic surgeon can advise the Court that the scar is permanent and has reached a permanent appearance. The opinion is given on a balance of probabilities, even though the chance of a resolved scar altering in appearance is almost negligible. The streamlining of claims procedures and the application of timetables imposed by the Courts has meant that plastic surgeons may be instructed to give opinions on scars, which have not reached a permanent appearance. In extreme cases, Claimants may present with florid and unresolved hypertrophic scars, or even with wounds which are unhealed or have the stiches still in place. In an unresolved scar, the eventual scar appearance has to be predicted by the expert and here the expert must be cautious when writing a prognosis, as the timescale of scar resolution and eventual scar appearance can be unpredictable, especially in children and in people from ethnic minorities.
Experts in plastic surgery are usually asked to give advice and an opinion, on the management of the scarring. The expert in plastic surgery may be faced with a client, legal colleagues and even other medical experts, who have unrealistic expectations of the outcomes which treatment for scarring can deliver. Scar revision surgery substitutes one scar for another. The Court and the claimant must understand that scar revision surgery is not indicated, unless there is a reasonable expectation that the revised scar will have a more favourable appearance than the original scar. The legal team (and the insurers) do not invariably understand that if a thing can be done, this does not mean that it must be done. Many Claimants do not wish for scar revision surgery and if the wish is shown to be reasonable and logical, this must be respected by all. The Court must be advised by the expert of steroid injections, pressure treatment, topical silicone and (with caution) the use of a laser. Advice should make clear, that medical treatments for scarring do nothing more than expedite scar resolution and will not restore the pre-accident appearance of the skin. Cosmetic camouflage is a reasonable alternative to other methods of treatment with a negligible risk of complications. If there is a contour defect or a spread scar, explanations about tissue expansion and fat grafting may have to be put before the Court.
Scarring in cosmetic surgery clinical negligence
In clinical negligence claims for breast surgery and abdominoplasty, the expert is required to causally relate unfavourable scarring to the allegation of breach of duty, as well as giving an opinion on the condition and prognosis of the scarring. The claimant may object to the positioning, length and quality of the scarring. After a breast reduction, the claimant may object to scarring which is excessively wide, pigmented and indrawn. Scars which transgress onto the side of the chest or into the cleavage, are more likely to be hypertrophic than scars confined to the inframammary fold and are more conspicuous. After abdominoplasty, the claimant may object to scarring which is not symmetrical, indrawn, excessively wide, or too high. The plastic surgery expert has to advise the court whether unfavourable scarring is causally related to any breach of duty, or whether the unfavourable scar appearance would have occurred in any event. Unfavourable scars related to a surgical complication cannot invariably be linked to a breach of duty, often to the disappointment of both Claimant and solicitor. A surgical complication does not invariably indicate a breach of duty. As in personal injury the expert should put before the Court an accurate diagnosis of the scarring, a prognosis based on the diagnosis and a clear causal link to the breach of duty, if such a causal link can be proved.
Giving an opinion on scarring
Medical expert witnesses are beset with advice on templates for medical reports. Templates appear in the literature of organisations which offer training for expert witnesses and in medicolegal textbooks. A novice expert witness is best advised to read the requirements for a medical report, to examine as many templates as possible and to create a personal template, with which he/she is comfortable to work with. The template should be regularly reviewed.
Advice on a template for giving an opinion is harder to find. The expert’s opinion is the core of any medical report. Again the individual expert should devise a personal template for giving opinions and should apply this template, in separate numbered paragraphs to,
a) each symptom described by the claimant,
b) each physical sign (such as a scar) found at examination,
c) each consequence of the alleged breach of duty including time off work, the need for more treatment, the risk of future deterioration, the effect on work and any other matters raised in the solicitor’s instructions.
A template for giving an opinion should be used as a guide, rather than a rigid straight jacket. A suggested template is,
a) A statement of the problem (Mr S has a scar on the front of his left lower leg).
b) An opinion on the claimant’s condition if the accident (or the alleged breach of duty) had never happened. (If this accident had never happened, the appearance of Mr S’s left lower leg would be normal, on a balance of probabilities).
c) The application of an appropriate legal test (It is my opinion that scar would not be present, but for the accident)
d) The prognosis for the scarring (It is my opinion that the scar is permanent and has reached a permanent appearance.
e) The reason for the opinion (I give this opinion because Mr S’s scar has been present for 18 months and has the characteristic appearance of a resolved hypertrophic scar).
To avoid a complex and unwieldy paragraphs, scar management is best discussed separately to the opinion on the scar. A discussion on scar management should cover,
a) The prognosis of doing nothing
b) The advisability or otherwise of scar revision surgery,
c) Whether medical management of the scarring would help’
d) Cosmetic camouflage.
e) experience in the surgical management of scarring and in the long term follow up of patients with scars.
A plastic surgery expert will be required to give an opinion on scarring in around three quarters of personal injury and clinical negligence reports. The reports should be based on,
a) A full training in plastic surgery and clinical experience in the management of scarring as a consultant.
b) Training and qualifications as an expert witness (no one would expect a magistrate not to be trained).
c) A correct diagnosis.
d) Understanding of the physiology and evolution of scarring
e) Correct application of legal tests in line with the expert’s instructions, as required by the Court and
f) Experience in scar surgery and in the long term follow up of patients with scarring.
Michael Porter entered the wards of the National Health Service, as a student at Kings College Hospital in 1966. He was a consultant plastic surgeon at Sandwell General Hospital from 1994 to 2012. Michael Porter has written medicolegal reports since 1996. In 2013 he passed the examinations for the Cardiff University/Bond Solon expert witness certificate and in October of 2014 he revalidated, after assessment and appraisal of his work as an expert witness. Michael Porter’s medicolegal practice is based at the Droitwich Spa Hospital and he also consults in Wolverhampton and Great Barr, Birmingham. ?