Facts

The plaintiff, 39, mother of three and swimsuit model, consulted with defendant for breast contractures from prior breast augmentation surgery performed 13 years earlier. The defendant removed and replaced the silicone breast implants, and during surgery caused a small cautery burn on the right lateral breast. The area of the burn broke down and required additional surgery one month later. The plaintiff alleged negligent performance of surgery, resulting in the need for further surgery and a resultant scar.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that the defendant accidentally burned the outside of her breast during surgery with a cautery, and admitted it to her and her husband in the first post-operative visit. The plaintiff claimed pain and suffering in requiring additional surgery, and also permanent "body image" issues as a result of having a permanent scar on the right lateral breast, which precluded her from wearing a swimsuit or revealing clothing without embarrassment.

DEFENDANT'S CONTENTIONS:
The defendant contended that the plaintiff was advised of the risks of the surgery, including the risks of skin loss, scarring, and need for further surgery. The defendant contended that the surgery was difficult due to the dense, hard scar tissue, and further the plaintiff had very thin skin (having gone from an AA to C cup in her initial breast augmentation surgery). Despite being careful, while removing the scarred tissue, a thermal injury from the inside traveled to the outside of the breast through the thin skin envelope, causing a first degree burn. The burn healed until the patient inadvertently abraded it two weeks later, which lead to skin breakdown and need for further surgery.

Settlement Discussions

The plaintiff demanded $29,999; the defendant made no offer, no consent.

Result

Defense verdict.

Other Information

EXPERT TESTIMONY: Michel Brones, M.D., a plastic surgeon, testified that the cautery burn to the left breast was caused by an accidental external burn during surgery, and does not happen in the absence of negligence. Alternatively, if the burn occurred, as the defendant testified, as an internal thermal injury during surgery, that the defendant was negligent by allowing the cautery to get too hot and by not being careful in getting to near the skin envelope. Joel Aronowitz, M.D., a plastic and reconstructive surgeon, testified that skin breakdown due to thermal injury from a cautery utililized during surgery during a removal and replacement surgery is a known risk of the procedure. The patient's skin was thin and the scar tissue dense, and despite being careful, this kind of injury occurs. Dr. Aronowitz testified that this could not be an external burn based on the appearance of the burn following surgery, as testified to by the defendant, and based on the fact that the skin did not break down until one month later.

Deliberation

40 minutes

Poll

11-1

Length

five days