Comments by Rose Clifford, RN, LNCC, editor
• $1.5 million verdict. The plaintiff, age 60, went to the defendant plastic surgeon for the removal of a benign lipoma under her right arm. During her course of treatment the defendant indicated to the plaintiff that her ongoing shoulder and back pain might be alleviated by breast reduction surgery. The plaintiff weighed approximately 250 lbs. at this time and had a breast size of 46DD. The plaintiff ultimately agreed to undergo the reduction. During surgery the defendant removed 1,401 grams of left breast tissue and 1,044 grams of tissue from the right breast. Before the surgery it was estimated that there were 1,500 grams of tissue in the left breast and 1,100 grams in the right breast. The plaintiff had multiple post-operative complications, including separation, or wound dehiscence, around the nipple area of the right breast and in the inframammary incisions on both breasts. The plaintiff returned to the defendant and her breast was resutured, but the sutures tore through the skin of the right breast and additional separation was noted on the left breast. The defendant recommended skin grafting to close the wounds and performed this without any cost to the plaintiff. There was additional wound separation after the grafting surgery, but the plaintiff’s wounds eventually healed. The plaintiff, however, developed scar tissue behind each of her nipples, which were something like “knots.” After several months the defendant suggested that the knots be surgically removed, but would necessitate bilateral mastectomies. The defendant also suggested that the plaintiff see a different surgeon. The plaintiff underwent multiple corrective surgeries, which included breast reconstruction with implants.
The plaintiff claimed that the defendant incorrectly marked her breasts in preparation for the initial breast reduction surgery, which led to the removal of too much skin, which, in turn, led to the removal of too much tissue in an effort to get close the skin. The plaintiff claimed that there was too much tension at the surgical site, which caused the separation, and a reduction of blood flow to the nipple area, which caused the formation of the scar tissue knots.
The defendant denied any negligence and contended that the plaintiff had an old scar on the right breast which complicated the procedure. The defendant also claimed that the plaintiff had a history of poor recovery following surgeries and that wound dehiscence and formation of fat necrosis were recognized complications of the procedure.
According to Metro Verdicts Monthly a $1.5 million verdict was returned. Plaintiff expert: Michael R. Zenn, MD, plastic surgery, Durham, N.C. Defense experts: Raymond F. Morgan, MD, plastic surgery, Charlottesville, Va.; James Samuel Mitchener, MD, plastic surgery, Roanoke, Va.
Shorter v. Reichel, et al., Roanoke City, Va., Circuit Court, Case No. CL03000133-00.
• RC: Wound healing issues in breast reduction surgeries raise a lot of concern in the preliminary phase of determining standard of care. A consultant or attorney initially should think of the individual’s past history of infection, obesity, personal hygiene and the rate of infections in the performing facility or with the specific surgeon. Once fully considered, infection may be ruled out, leaving potential physiologic causes of wound healing, potential physical causes (suture tightness, tension) and mechanical causes, which include surgical technique used, and risks. Wound healing is considered a known risk or complication of the surgical procedure and often is viewed as a bad or undesirable outcome. A review should take into consideration all of these elements. This case involved a woman who initially came in for the removal of a benign lipoma under her right arm. She was offered a breast reduction to treat her ongoing shoulder pain and back pain, which is a reasonable recommendation by the surgeon where medical necessity is evident. The patient was overweight, which the surgeon would take into consideration.
Wound healing that requires skin grafts, and the development of additional wound healing issues such as tissue scarring and subsequent bilateral mastectomies, are something that would move a jury.
Initial considerations for consultants and counsel would be standard of care issues surrounding the amount of tissue to remove, how it was marked, the surgeon’s technique in marking and the proper position of the patient when measuring the tissue to be removed. The truth lies with the underlying pathophysiology of tissue healing. Other considerations are possible defenses such as the patient’s obesity, poor ability to heal and patient compliance.
• Defense verdict. In February 2000 the plaintiff, age 40, underwent facial plastic surgery performed by the defendant. This included repair of a deviated septum, rhinoplasty, a chin implant and liposuction on her neck. The plaintiff’s right nasal passageway was blocked and the plaintiff complained of a hump on her nose. Another physician subsequently removed the chin implant which the plaintiff claimed had migrated subcutaneously. The plaintiff also claimed facial paralysis (paralysis of the platysma muscle).
The defendant claimed that the plaintiff abandoned treatment after the surgery — leaving his care 11 days after surgery — which prevented him from having the opportunity for remedial action. The defendant also claimed that the complications experienced by the plaintiff were known complications of the procedure.
According to North Texas Reports a defense verdict was returned. Plaintiff expert: Fabian Worthing, MD, plastic/reconstructive surgery, Houston. Defense experts: Daragh Heitzman, NMD, neurology, Dallas; Todd Pollack, MD, plastic/reconstructive surgery, Dallas.
Driver v. Kasden, Tarrant County, Texas, District Court, Case No. 348-192629-02.
• RC: Plastic surgery cases, like any surgery case, tend to carry general risks and complications. This surgery resulted in the development of facial paralysis and a problem with the plaintiff’s chin implant. Complaints of migration of the implant led to the selection of a second plastic surgeon and a second surgery. Initial review of this case for merit should have focused on the degree of damages and whether the damages were permanent. A non-fixed chin implant can be easily anchored. Here, the degree of paralysis and its extent and effect would be more the focus. If it is of minimal degree without interference of function, it seems to be case-limiting. Plastic surgery cases tend to be hard cases to win for the plaintiff. Most lay juries think such surgery is unnecessary and vain. Unless the breach was outrageous, most jurors will lean toward a defense verdict. The defense claimed the patient abandoned the treatment, depriving the doctor of the opportunity to correct the risks to which the patient had consented. This seems unreasonable. Anticipating this at the merit stage would be most helpful to any attorney.
• $18,000 settlement with hospital, $625,200 verdict against psychiatrist. The plaintiff, age 55, had a history of depression, for which she underwent successful electroconvulsive therapy. Following the deaths of her husband and father, she suffered another bout of depression and was again treated with electroconvulsive therapy. Six months later she went to a new psychiatrist, who referred her to his partner for electroconvulsive therapy. The partner administered outpatient electroconvulsive therapy every day for 10 days. During the treatment, which took place at a hospital, the referring psychiatrist documented that the plaintiff was experiencing memory and severe cognitive problems. He did not report this to his partner and allegedly encouraged the plaintiff to continue the treatment. The plaintiff suffered brain damage from the electroconvulsive therapy. It caused her to lose all of her memories from the last 30 years, including the births of her children and her professional skills. The plaintiff had been a psychiatric nurse practitioner, but is now unable to work.
The plaintiff claimed that electroconvulsive therapy should be given no more than three times a week and that the referring psychiatrist had been negligent in failing to communicate with his partner about the memory problems noted in the plaintiff. The plaintiff also alleged negligence by the hospital regarding its policies on electroconvulsive therapy.
The plaintiff settled with the hospital during trial for $18,000. A jury awarded about $625,200, finding the referring psychiatrist solely liable.
Plaintiff experts: Peter Breggin, MD, psychiatry, Ithaca, N.Y.; Mary Beth Shea, PhD, psychology, Columbia, S.C. Defense expert: Charles Kellner, MD, psychiatry, Newark, N.J.
Salters v. Palmetto Health Alliance, Richland County, S.C,. Circuit Court, Case No. 03CP4004797.
• RC: Psychiatric cases are tough to pursue successfully. They really require a single measurable simple deviation from the standard of care and distinct overwhelming damages. The loss of more than 30 years of memories and professional skills as a psychiatric nurse practitioner due to excessive electroconvulsive therapy treatment seems huge — just on face value. Who on the jury would not understand the magnitude of the loss? This is brain damage. The consultant or attorney would be determining the pathophysiological cause of the damage early on in the case evaluation. As to the specific breach in the standard of care behind the causation, it would focus on: 1) the number of times per week the therapy was administered, 2) the lack of communication between the treating physician partners and 3) the appropriateness of the hospital policies regarding the electroconvulsive therapy.
FAILURE TO DIAGNOSE
$3 million settlement. The plaintiff, age 25, went to the office of gynecologist Samuel Rafalin in March 2002 complaining of a grape-sized right breast lump. A sonography was ordered and performed at Lenox Hill Radiology and Medical Imaging Associates. The test was interpreted as normal. In July 2002 the plaintiff noticed that her right breast’s nipple was inverted. She went to Dr. Arnold Lipton, who ordered a sonography. This was performed by Dr. Yefim Vaynshelbaum at Park Avenue Medical Imaging and Mammography. Breast cysts were diagnosed. A follow-up examination for January 2003 was scheduled. At that visit sonography was performed again and interpreted as normal. The plaintiff underwent an annual Pap smear in January 2 003, which was performed at a free medical clinic. One of the clinic’s physicians examined the inverted nipple and sent the plaintiff to a hospital where mammography and sonography was performed and breast cancer was diagnosed. The plaintiff had a tumor that was 5.3 centimeters in size and that had metastasized to one lymph node. She underwent chemotherapy, a mastectomy and radiation treatment. She was cancer-free at the time of trial.
The plaintiff claimed that the cancer should have been diagnosed in March or July 2002, before metastasis occurred. The plaintiff claimed that mammography was never recommended and that the inverted nipple should have caused the defendants to perform further testing.
The defendants maintained that the plaintiff’s young age and dense breasts would have negated a mammography’s effectiveness and that the sonograms had revealed only unsuspicious cysts. Dr. Rafalin claimed that he had scheduled a follow-up examination, which was to be performed four months after the March 2002 examination, but the plaintiff denied this.
Defendants agreed to a $3 million settlement just prior to trial.
Smith v. Rafalin, et al., New York County (N.Y.) Supreme Court, Index No. 117182/03.
• RC: As I have mentioned in previous issues, in order for the claim to be successful in terms of damages, failure to diagnosis breast cancer (although this sounds harsh) must involve a delay in the diagnosis time adequate enough to allow for sufficient growth of the cancer to necessitate a need for more extensive treatment — and a real potential for a shortened life. In this case, sufficient delay seems apparent from the facts, and as the settlement would indicate. Initial screening of this case would have picked up on a doctor’s lack of attention to the inverted nipple and the time delay of nine months, in spite of the seemingly normal diagnostic evidence on the sonograms. The examination revealing the inverted nipple seems to contradict the interpretive results, which should have led to more investigation. Here, the young age of the plaintiff, and the fact that the doctors did not follow medical training, would anger a jury.
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