Facts

Plaintiff Jeanine Del Carlo, a 29-year-old fitness instructor and entertainer had a history of previous bilateral saline implant placement and crescent lift in 2004. Her left implant ruptured in September 2010. After consulting with another plastic surgeon, the plaintiff opted to undergo a bilateral implant exchange with bilateral Benelli doughnut lift performed by defendant Dr. Linda Li. The plaintiff was advised of the risks, complications and alternatives to the procedure and understood such risks, including the risk of delayed wound healing, wound dehiscence, widened scars, and revision surgery. The plaintiff consented to the procedure and on Sept. 21, 2011, the surgery was performed.

The plaintiff contended that she was given, and followed inappropriate aftercare instructions advising that she could shower the day after surgery. As a result, the incisions around her nipple areolar complex became infected and separated. On Feb.24, 2011, before her surgical wounds were completely healed, Dr. Li performed a bilateral scar revision. The stitches from the left revision came undone three days later and on March 1, 2011; Dr. Li performed a second revision on the left breast using nylon permanent sutures instead of monocryl dissolvable sutures that had been used in the previous surgeries. The plaintiff, however, insisted that Dr. Li switch out the nylon sutures for the monocryl sutures despite Dr. Li's admonition that the nylon sutures would provide the optimal chance for healing as the wound had dehisced with the use of monocryl sutures. As there was a possibility that the left incision, like the right incision, could heal with the monocryl sutures, Dr. Li exchanged the nylon sutures for the monocryl sutures. The plaintiff alleged that Dr. Li thereafter told her never to come back. The wound separated shortly after leaving Dr. Li's office, and even though she saw another plastic surgeon, Dr. Eugene Kim on March 3, 2011 regarding the incisions, she claimed he was not her physician. She contended Dr. Li abandoned her and she was left to care for a severely infected, open wound for several months without a physician's assistance.

The plaintiff's boyfriend testified that based on his past experience observing and treating wounds as a physical therapy aide, he believed that after the plaintiff stopped treating with Dr. Li, the plaintiff's dehisced wound became infected resulting in several weeks of intermittent fevers that ranged between 100 and 103 degrees. She did not, however, seek or receive any treatment from a physician regarding this. Instead, both he and the plaintiff cared for the wounds over a period of several months until they closed.

The plaintiff's implants subsequently ruptured in April and May 2012, over 12 months since she last saw Dr. Li. The plaintiff ultimately underwent a bilateral Wise pattern mastopexy and implant exchange performed by another plastic surgeon, Dr. Stuart Linder, in June 2012. The plaintiff contended this was the surgery Dr. Li should have performed in September 2010, instead of the Benelli mastopexy. The plaintiff also had left wound dehiscence as a result of the June 2012 procedure and had a left scar revision in October 2012.

The plaintiff took several photos of her open wounds over the course of several months purporting to show a raging infection both during the time of treatment with Dr. Li and after her last visit with Dr. Li on March 1, 2011, several of which were admitted into evidence.

Dr. Li, with support of expert plastic surgeon Marc Mani, M.D., denied that her aftercare instructions were inappropriate and fell below the standard of care, or that there was any alleged negligence on the part of Dr. Li that resulted in injury to the plaintiff.

Dr. Li testified based on the plaintiff's presentation in September 2010, either the Benelli mastopexy or the Wise pattern mastopexy were appropriate choices for a breast lift, although the Wise pattern mastopexy would provide a stronger lift. The plaintiff testified she chose not to go with the Wise pattern mastopexy based on cost and the more extensive scarring involved.

The defense expert Marc Mani, M.D. testified that the choice of procedures met the standard of care, the procedure was appropriately performed with an excellent result and the complication suffered by the plaintiff was wound separation and delayed wound healing which can, and in this case did, happen in the absence of negligence. The plaintiff did not at any time have an infection.

Dr. Li contended that it was appropriate to perform the scar revision on Feb. 24, 2011, as there were only small openings of the incision remaining that would be excised with the scar tissue. When the incision on the left breast separated again, as this was an acute separation it was appropriate to attempt to re-close it on March 1, 2011, as there would be no harm if it re-dehisced, and only benefit if it healed primarily. With regard to the exchange of sutures on this date, Dr. Li testified she usually does not discuss the type of sutures used, as this is the surgeon's choice. Nevertheless, while the dissolvable sutures were sub-optimal, there was a chance that, as with the right breast, the incision would close primarily with the use of these sutures. As such it was appropriate to replace the sutures at the plaintiff's request.

Dr. Mani, the defense expert, testified this decision was within the standard of care.

Finally, Dr. Li testified Del Carlo had a follow up appointment for March 3, 2011 and Dr. Li intended to see her at that appointment. She was advised on the morning of March 3, 2011 that the plaintiff had called the night before to cancel the appointment stating that she was going to see another plastic surgeon.

Plaintiff called plastic surgeon Dr. Eugene Kim who saw her on March 3, 2011 and through October 2011, and he also testified that on March 3, a physician-patient relationship was established with plaintiff, and she advised him that she wished to transfer her care from Dr. Li to him. The plaintiff also called Dr. Stuart Linder who performed the Wise pattern mastopexy and implant exchange.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that Dr. Li's post-operative care instructions after the Bennelli mastopexy and implant exchange on Sept. 21, 2010 were inappropriate resulting in infection of her wounds; Dr. Li's post-operative care and treatment was also inappropriate; that she did not provide appropriate informed consent for the suture exchange on March 1, 2011; and that Dr. Li abandoned her as a patient, leaving her to care for open and infected wounds without physician supervision.

The plaintiff further contended that due to inappropriate care and treatment provided to her by Dr. Li, she had subsequent implant deflations in April and May 2012.

DEFENDANT'S CONTENTIONS:
Dr. Li contended that she provided appropriate informed consent for all the procedures she performed, including for switching the sutures at the plaintiff's request on March 1, 2011. The plaintiff had a complication of wound separation post-operatively after the Sept. 21, 2010 procedure, the Feb. 24, 2011 procedure and the March 1, 2011 procedure, as well as delayed wound healing, all of which were known complications that can and in this case did occur in the absence of negligence. These potential complications were disclosed to, and accepted by, the plaintiff prior to the procedures. At no time did the plaintiff have a wound infection while treating with Dr. Li.

Dr. Li also contended that the post-operative care instructions and the care and treatment she provided to the plaintiff at all times met the standard of care.

Dr. Li contended she did not abandon the plaintiff, rather the plaintiff chose to leave her practice and continue treatment with another plastic surgeon.

Finally, Dr. Li alleged that the plaintiff's subsequent bilateral implant deflation over twelve months after she last saw the plaintiff was not due to any negligence on her part.

Settlement Discussions

The plaintiff made a CCP 998 demand of $225,000. The defendant made a CCP 998 waiver of costs in exchange for dismissal with prejudice.

Result

Defense verdict.

Other Information

FILING DATE: Dec. 16, 2011.

Deliberation

1.25 hours

Length

12 days