Facts

Deborah Davis presented to a general surgeon, Dr. Leslie Memsic, on October 12, 2018 with a recurrent ventral hernia and a diastasis rectus (a separation or spreading of the abdominal muscles at the midline). It was alleged by both the patient and her husband, Richard Davis, that Dr. Memsic recommended a hernia and diastasis rectus repair, without any discussion of the risks of surgery, and then persuaded them to agree to a tummy tuck as well, representing that she was as skilled in this procedure as any plastic surgeon. Dr. Memsic denied ever making any such representation, contending that the only cosmetic portion of the surgery was the placement of the surgical incision below the waist.

The surgery was performed on November 28, 2018 at the Innova Surgery Center, at which time Dr. Memsic elected not to place any mesh reinforcement of the hernia repair. The patient experienced significant post-operative pain and was admitted to Cedars-Sinai Medical Center on December 5, 2018 with an altered mental status (felt to be secondary to overmedication with narcotics). While in the hospital, Mrs. Davis developed an infection of the abdominal wall, necessitating a procedure by Dr. Memsic on December 12, 2018 to "washout" the abdominal wall before the patient was discharged to home on December 13, 2018.

Mrs. Davis was followed in the office of Dr. Memsic post-operatively with significant abdominal pain and a protruding, disfigured abdomen. A CT scan of the abdomen and pelvis revealed a recurrence of the diastasis rectus but made no finding that the hernia had recurred. Dr. Mesic was alleged to have repeatedly informed the patient that her pain had no identifiable source and that all of her issues were cosmetic in nature. As a result, Mrs. Davis sought out care from multiple other providers, ultimately discovering that she did have a large recurrent ventral hernia. She underwent surgery on March 5, 2020 at UCLA with a team of physicians, who reconstructed her abdominal wall successfully with a hernia repair, diastasis repair and an abdominoplasty.

PLAINTIFF'S CONTENTIONS: Plaintiffs contended that it was below the standard of care for Dr. Memsic to have failed to provide an informed consent before surgery, and to have failed to place mesh as part of the reinforcement of her surgical repair of the ventral hernia. It was also alleged that Dr. Memsic should have identified a recurrent ventral hernia on the CT scan of March 12, 2019 as the source of the patient's abdominal pain.
Plaintiffs alleged that Dr. Memsic promised to perform a tummy tuck that was never performed, and that she demeaned and dismissed the patient's post-operative complaints, triggering severe emotional distress and ultimately causing the patient to suffer from Post-Traumatic Stress Disorder.

DEFENDANT'S CONTENTIONS: The defense contended that the care rendered to this patient by Leslie Memsic, M.D. complied with the standard of care in all respects. The defense argued that the patient was provided with an appropriate informed consent and that Dr. Memsic never promised to perform a tummy tuck on this patient. Although her medical records repeatedly refer to an abdominoplasty, it was explained that this surgeon felt all abdominal wall surgery is technically an "abdominoplasty", but not a "tummy tuck".

Dr. Memsic explained that mesh does strengthen any hernia repair, but that it also is accompanied by multiple risks, and that she did not believe that mesh was necessary in this case due to the quality of the tissue, and the quality of the repair obtained. Moreover, given that the patient suffered a subsequent abdominal wall infection, it was argued that the end result would have been the same (the mesh would need to be removed in the face of the abdominal wall infection).
Finally, the defense argued that no recurrent hernia could be seen on the March 12, 2019 CT scan and in the absence of any such finding, it was perfectly reasonable to inform the patient that there were no surgical options to address her pain and that her surgical issues were cosmetic in nature.

Specials in Evidence

Meds: $70,000 Future Meds: $16,500

Injuries

Plaintiffs argued that the patient and her husband had an awful experience from October, 2018 to March, 2020, required significant medical services to correct the surgical errors of Dr. Memsic. In addition, it was contended that Dr. Memsic intentionally misrepresented facts to them regarding the medical care being rendered, and acted to intentionally or recklessly inflict emotional distress on the plaintiff. Dr. Howard Greils testified that Mrs. Davis had recovered from a major depressive disorder but would suffer from Post-Traumatic Stress Disorder for the remainder of her life. She was felt to require a minimum of 10-12 sessions of psychotherapy per year for the next 5 years. Both plaintiffs sought unspecified amounts of non-economic damages as well as special damages of $16,500 for future therapy and $70,000 in past medical expenses. A claim for punitive damages was also pursued.

Result

Defense verdict for Dr. Leslie Memsic on all causes of action. The jury voted that Dr. Memsic met the standard of care (Medical Negligence, Loss of Consortium), did not engage in outrageous conduct (Intentional Infliction of Emotional Distress), and did not make any misrepresentations of a material fact (Fraud/Intentional Misrepresentation).

Other Information

The jury was not polled, although juror interviews after the verdict indicated that each question was answered by a 12-0 vote in favor of defendant, Dr. Leslie Memsic.

Deliberation

one hour, 33 minutes

Length

11 days