Facts

On Feb. 18, 2009, plaintiff Ann Skiba, age 42, presented to defendant Dr. Maurice Sherman with pain and redness in her left breast. Eight years earlier, she had breast augmentation with Dr. Sherman. Dr. Sherman determined plaintiff had cellulitis and prescribed her an antibiotic and advised her to return in two days if no improvement. Plaintiff returned two days later without improvement. She was advised to remain on antibiotics and call on the following Monday to advise as to her condition. No follow-up appointment was set. Plaintiff called in on Monday, advised she was not any better and scheduled an appointment on Feb. 25th. Dr. Sherman advised plaintiff that if the infection did not get better, she may have to consider removal of her implant; however, he felt conservative treatment with oral antibiotics was appropriate at that time.

On Feb. 25th, seven days into the infection, plaintiff presented to Dr. Sherman's office with worsening symptoms including a fluid pocket in the area of the infection. Dr. Sherman performed a needle aspiration in the area of the infection and changed the antibiotic. Again, Dr. Sherman advised plaintiff that if the infection continued, she might have to consider removal of her implant; however, he still felt conservative treatment with oral antibiotics was appropriate and that it was appropriate not to take any surgical steps at that time. Dr. Sherman contended that plaintiff refused surgery. Plaintiff denied this. There was nothing in defendant's records regarding plaintiff's alleged refusal or a conversation regarding any risks associated with refusing surgery.

On March 2nd, plaintiff spoke with the nurse from Dr. Sherman's office that advised plaintiff that her culture was negative and that she did not have an infection and refilled her antibiotics. Plaintiff gave the nurse her number and asked Dr. Sherman to call her if he had any concerns regarding the same. Defendant did not call her. By the time plaintiff presented for her next appointment on March 5th, she had necrotic tissue in the site of the needle aspiration and obvious signs of worsening cellulitis. Defendant finally referred her to the hospital where she was admitted and underwent surgery to remove the infected implant. Plaintiff lost a significant amount of breast tissue as a result of the infection resulting in a severe deformity of her breast.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that Dr. Sherman failed to appropriately treat and diagnose her breast infection. Cellulitis around an implant should be treated aggressively with antibiotics and if there is not rapid improvement in a few days, the implant should be removed. Despite clinical signs of progression on February 25th, Dr. Sherman failed to recommend plaintiff have the infected implant removed for another eight days. By the time he recommended surgery, she developed necrosis resulting in the loss of a significant amount of breast tissue. Plaintiff denied ever refusing surgery with Dr. Sherman.

DEFENDANT'S CONTENTIONS:
Defendants contended that as of Feb. 25th, it was appropriate not to take any surgical steps and to continue treating the infection with antibiotics; however, when defendant did discuss the possibility of surgery, plaintiff refused. Defendants claimed plaintiff was a non-compliant patient and missed appointments.

Settlement Discussions

Plaintiff served CCP 998 offer for $200,000. Defendants served CCP 998 offer for $29,000.

Specials in Evidence

$21,166 $40,000

Injuries

Plaintiff required extensive surgery to remove the infected implant and necrotic tissue. She was hospitalized for six days and had a wound vac for weeks afterwards. She underwent a second surgery in November to close the wound. She will require extensive reconstructive surgery.

Result

Plaintiff's verdict for $186,700.

Other Information

FILING DATE: March 23, 2010. The bench trial lasted seven days.