LRC: Surgeon hit with $5.1 million verdict for botched forehead lift.
September 1, 2013
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Surgeon hit with $5.1 million verdict for botched forehead lift
News: In January 2010, a 53-year-old woman from Ohio agreed to have minor plastic surgery performed on her forehead and on her eyelids. The surgery was to involve only three minimal incisions and the injection of dermal fillers, a synthetic material. The surgeon, however, performed completely different procedures than those he and patient had agreed upon. He used more invasive and dangerous methods than necessary, and the patient suffered postoperative infections, nerve damage, and vision problems. In fact, it was discovered that surgeon did not perform any of the procedures patient wanted and that he failed to inform her of any of the risks, benefits, or alternatives of the procedures he did perform. The jury returned a verdict of $5.1 million for the patient and her husband.
Background: The patient in this case presented to a surgeon in January 2010. She was considering upper eyelid repairs and the removal of wrinkles underneath her eyes. This procedure, a blepharoplasty, involved having dermal filler, a synthetic wrinkle-relieving material, injected into patient’s lower eyelids. The surgeon persuaded the patient that she needed additional procedures to obtain the proper look. The procedures the surgeon discussed were an endoscopic forehead lift, laser skin rejuvenation, botox injections, and eyelid repairs. Incidentally, these procedures would cost the patient an additional $5,350 over the $1,975 for the original procedure.
One month later, on Feb. 23, 2010, the patient returned to surgeon and signed an agreement to undergo an endoscopic forehead lift, a blepharoplasty upper, pinch lower lid blepharoplasty and volumizing filler, fractional laser skin rejuvenation, and Botox periorbital. The patient returned on March 12, 2010, to have the surgeries.
When the patient awoke, she discovered the surgeon had performed a traditional forehead lift as opposed to the endoscopic forehead lift. In performing the traditional forehead lift, the surgeon made an ear-to-ear incision across her scalp, which resulted in pain and scarring. The patient also discovered that surgeon did not use the dermal filler, but that he harvested tissue and fat from patient’s thigh and injected it into her lower eyelids, which resulted in pain and scarring on her thighs. The surgeon also performed an additional laser eye procedure, which resulted in damage to the patient’s vision. The surgeon never discussed performing these surgeries and, therefore, failed to apprise the patient of the risks, benefits, and alternatives available. In addition to not performing the endoscopic forehead lift, the surgeon also failed to perform the blepharoplasty upper, pinch lower lid blepharoplasty and volumizing filler, fractional laser skin rejuvenation, and Botox periorbital.
As a result of surgeon’s care, the patient was left with permanent scarring, nerve damage, and damage to her vision. The patient also suffered a postoperative methicillin-resistant Staphylococcus aureus (MRSA) infection.
The patient and her husband sued surgeon for medical malpractice, failure to obtain informed consent, medical battery, loss of consortium, and malice. Plaintiff’s experts opined that the patient and surgeon had entered a contract for the performance of an endoscopic forehead lift, upper blepharoplasty, lower lid blepharoplasty with volumizing filler, and Botox injections. The plaintiff’s experts further opined that the surgeon failed to perform any of the agreed-to operations. Instead, the surgeon performed a much more invasive forehead lift and other completely new procedures such as the excision and injection of thigh tissue and fat into the patient’s eyelids and laser eye surgery. The patient testified that she specifically told the surgeon that she did not want the traditional forehead lift due to the ear-to-ear forehead incision.
During discovery, the surgeon refused to release his records to the patient. However, the court granted plaintiff’s motion to compel production of the records and ordered the defendant to disclose them The jury returned a verdict finding that the surgeon negligently performed the procedures, the surgeon was liable for medical battery for failing to obtain informed consent, and that the plaintiff would not have gone through with the operation had she been informed. The jury allotted the patient $50,000 for economic damages such as potential earnings or lost earnings, $3 million to compensate the patient for surgeon’s negligence, $2 million to compensate the patient for medical battery, and $50,000 for the patient’s husband’s loss of consortium claim.
What this means to you: What is wrong with this picture? In January 2010, a woman, 53 years young, visits a physician to discuss her desire to have elective minor plastic surgery procedures to reduce minor wrinkles around her eyes. The cost of these desired outpatient procedures was $1,975. As elective cosmetic procedures, they were not covered by insurance and therefore were self-pay. During this visit in January, the surgeon talked the patient into more extensive procedures that increased the cost an additional $5,350. She returned to see the surgeon a month later and agreed to the upgraded procedures, signed the consents, and scheduled the surgery for March. Upon awakening from the surgical procedure, she found that even more aggressive and extensive upgraded procedures has been done that she had explicitly told the surgeon she did not want. As a result, she suffered scars she had not wanted and other complications and expenses.
This surgeon held himself out to be a clinical assistant professor of medicine at Northwestern Ohio Universities College of Medicine who had a practice in a town close to the university. His specialty was otolaryngology, head and neck, but he also did business as a facial plastic and aesthetic laser center. The surgery was done in the surgeon’s office. We are not provided with information regarding whether the office surgery was an approved/licensed ambulatory surgery center (ASC), an approved office-based surgery (OBS) facility, or just a room where the surgery is done.
In view of this doctor’s main specialty of otolaryngology, head and neck, it is unclear if he had additional training in plastic surgery. It is unclear if this patient did any background checks on this surgeon or others in the area and how she decided on this surgeon. This scenario adds support to the advice given to patients to check out physicians and surgeons and to obtain a second opinion before agreeing to an elective or non-emergent procedure, if time permits.
This case is very disturbing. We are faced with a surgeon who might or might not have had further training in plastic surgery past his otolaryngology, head and neck training who has "hung out his shingle" as a plastic surgeon with a surgery room in his office. We have no information regarding whether his surgery was compliant with applicable state rules and statutes. We have a patient who came to this surgeon for minimal procedures to smooth out the wrinkles around her eyes and was talked into more extensive and aggressive surgical procedures. The patient explicitly told this surgeon that she did not want the more extensive surgical procedures than those to which she had consented and that were more expensive than the ones she agreed to. However, when she awoke from the surgery, she found she had had the surgical procedures she explicitly refused to have. This surgeon disregarded the patient’s desires and consented to do surgical procedures that apparently he wanted to do regardless of the patient’s desires.
Within seven days of the surgery, the patient developed facial boils that were from MRSA. Was this the result of less than adequate sterilization and aseptic techniques in his surgery room?
This surgical procedure was done in the surgeon’s independent office practice surgery. It is not usual practice that a stand-alone office practice engages a risk management consultant to conduct a periodic assessment of the office’s compliance with rules and standards of practice. Unless the physician’s professional liability insurance provides an on-site assessment or a complaint is made to the state department of health, there generally is no oversight provided to the physician’s office practice setting. That being the case, the usual post-event evaluation and full analysis of the facts probably would not have been undertaken. Other than the investigation undertaken by the plaintiff and defense attorneys, there is no process to identify the root cause and to implement preventive actions.
The jury found this surgeon guilty of medical battery and failure to have consents for the procedures he performed. This case is a good example of why the physicians and surgeons should understand the patient’s desires and consents. Patients have control over their bodies, and doctors have no right to disregard the patient’s consent.
Case No. 2011-CV-00758, Court of Common Please, Mahoning County, OH.
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