Facts

On Feb. 23, 2010, plaintiff, a 55-year-old songwriter, presented to defendant, a plastic surgeon. Plaintiff expressed displeasure mainly concerning two issues: her hanging upper arms and her "asymmetric infragluteal crease," a congenital deformity where the crease on the leg where the thigh meets the buttocks, is lower on the right side than the left.

Plaintiff alleged that defendant assured her that she had good skin tone on her arms and legs, that her skin would retract on its own after liposuction, and thus liposuction alone would remedy her hanging arms, without the need for a subsequent surgery (a brachioplasty) to surgically remove resulting loose skin, which would leave an unsightly scar. Plaintiff also alleged that defendant represented he could and would fix the asymmetry of her buttocks, despite the fact that years ago another plastic surgeon had told plaintiff that the congenital deformity could not be fixed. Having made such representations, plaintiff alleged that defendant went on to recommend other liposuction to her legs, as long as plaintiff was undergoing general anesthesia for the procedures, to which plaintiff agreed. Plaintiff also alleged she agreed to have fat graphs to a large indentation in her right arm that was secondary to prior melanoma surgery, and an indentation in her left ankle.

On March 19, 2010, plaintiff proceeded to surgery. She was discharged with compression garments on her arms and legs. Sometime thereafter, plaintiff learned that the asymmetry of her buttocks had not been corrected, and alleged that defendant failed to even attempt to correct this condition. Plaintiff further found that she was left with hanging loose skin at her upper arms, with one side lower than the other, and that surgery would be needed to remove the loose skin that would result in scaring. Plaintiff was also left with multiple disfigurations and indents in all areas worked on by defendant. Plaintiff also found that none of the fat grafts were effective. Plaintiff also found that liposuction had been done to an area of her buttocks to which she did not consent, and that a fat graft had been done to her lower right leg to which she had not consented.

Plaintiff returned to see defendant on multiple occasions for follow up visits and to address the issues. Ultimately the doctor client relation broke down. Plaintiff consulted with several other doctors for opinions as to what could be done to remedy the disfigurations to her body, and as to how effective such procedures would be.

Ultimately, plaintiff brought this action for medical negligence, medical battery, fraud and deceit.

Settlement Discussions

Defendant served plaintiff with a CCP 998 in June 2012 seeking a dismissal in exchange for a waiver of costs. Plaintiff served defendant with a CCP 998 for $150,000 on Sept. 4, 2012.

Damages

Plaintiff alleged pain, suffering, emotional distress and disfiguration (capped at $250,000), about $10,000 in past medical expenses; and about $170,000 in future medical expenses.

Result

The jury returned a defense verdict.

Other Information

A motion for non-suit on the issues of medical battery, fraud and deceit was brought by defendant at the close of plaintiff's case in chief. The court granted the non-suit in part as to medical battery, conditional consent, fraud and deceit claims. However, Judge Chester Horn ruled that there was sufficient evidence to go to the jury on the question of medical battery arising from a substantially different surgery than the one plaintiff consented to by her words and conduct. EXPERT TESTIMONY: Plaintiff's expert, Dr. Melvin Shiffman, M.D., a cosmetic and general surgeon, testified that defendant negligently failed to follow the principles of liposuction, and among other things, removed an excess amount of fat from the upper and lower extremities in light of the pre-operative findings. Dr. Shiffman also testified that defendant's statement in plaintiff's medical records to the effect that plaintiff had good skin tone and thus the skin should retract after liposuction without the need for skin excision surgery, was wrong based upon plaintiff's age and the pre-operative photographs. Dr. Shiffman also testified that defendant negligently placed an insufficient amount of fat in the right forearm and left lower leg, and covered the areas where fat transfers were performed on the right arm and both lower extremities with compression (pressure) garments, which led to the failure of these fat grafts. In addition, Dr. Shiffman testified that plaintiff was left with significant deformities, and indentations in all areas of surgery where liposuction and/or fat transfer were performed by defendant. As a result, plaintiff will need serial cosmetic surgery to mitigate the injuries caused by defendant's negligence. Such cosmetic surgery will not completely cure the disfigurations, and some of the procedures if pursued, would leave significant scaring due to the need for skin excision. Defense expert, Dr. Harry Marshak, M.D., a plastic surgeon, testified that defendant's care and treatment, including pre-operative assessment and surgical markings, as well as, technique for liposuction and fat transfers was well within the standard of care. The contour irregularities experienced by plaintiff are known complications of liposuction, as were the failure of the fat transfers to remain viable. FILING DATE: June 15, 2011.

Deliberation

two hours, 15 minutes

Poll

11-1 (for defendant on medical negligence), 11-1 (for defendant on medical battery)

Length

eight days