By Anthony H. Gair;
New York medical malpractice attorney Anthony Gair discusses a medical malpractice case, which was tried in New York Supreme Court, New York County, in which a woman who had since birth a congenital abnormality known as an hemangioma on the left side of the face which is caused by an abnormal distribution of blood vessels. There are different types of hemangiomas such as capillary or cavernous hemangiomas which may actually cause physical impairment. The type of hemangioma the plaintiff had was an intradermal hemangioma often referred to as a port wine stain because of its color which does not cause physical impairment. Since her teenage years, she was able to cover it up with make-up. When she was 40 years old she developed what are known as blood spots or blisters, which are raised areas on the hemangioma which caused difficulty in covering it with make-up.
Being concerned about it, she consulted with the defendant-plastic surgeon. Plaintiff claimed she only went to the physician because of the blood spots. It was claimed she had lived her entire life with the birthmark and only desired treatment for the blood spots.
Plaintiff’s strategy at trial was that the defendant was solely a cosmetic surgeon, not a reconstructive plastic surgeon who dealt with devastating physical disfigurements. The idea was to portray her as highly mercenary, going so far as to advertise extensively for patients who she claimed she could make look better. Plaintiff asserted that she told the defendant she was concerned with the blood spots because she couldn’t cover them with make-up. She testified that the defendant told her not only could she get rid of the blood spots but that she could remove most if not all of the hemangioma. The plaintiff, as would be expected, became very emotional that after all these years the hemangioma could be removed.
The defendant told her she could remove the hamangioma by surgery known as tissue expansion. It was plaintiff’s claim that tissue expansion was reconstructive, not cosmetic surgery, and as it was developing at the time was being used not for cosmetic but for reconstructive procedures such as breast reconstruction following a radical mastectomy, or for such disfiguring injuries as gunshot wounds and severe burn injuries. It was claimed that when it was used on an hemangioma it was on the types that impaired one physically. In other words, the claim was it was used where any scarring it caused would still be an improvement over the condition being corrected.
Tissue expansion is a two stage procedure. In the first phase a surgical incision is made in the area of the hemangioma and a tissue expander, which is a balloon-type of inflatable device is inserted under the skin with a filler port extruding. Thereafter during a period of many weeks the expander is filled with saline thus expanding it as a mechanical means of stretching the skin to create a flap which will be used to cover the defective area, in this case the port wine stain. The proof was that the defendant had never performed tissue expansion on a hemangioma.
It was plaintiff’s primary claim that at the second stage of the surgery when the flap was to be used to cover the defect, there were obvious signs of infection and a compromise of the blood supply which would doom the surgery to failure, result in significant scarring and cause necrosis of the flap. Plaintiff claimed that defendant should then have cancelled the surgery and simply removed the expander excising the stretched skin. Instead she went through with the surgery, the flap necrosed and horrendous scarring resulted which required two further surgeries by a well known reconstructive surgeon to correct what the defendant had caused. The plaintiff was of course left with the hemangioma and additional scarring.
The defendant claimed this was merely a complication of the surgery the risks of which had all been explained to the plaintiff, who was an educated woman, and the surgery was a proper procedure for this patient. Finally the defendant argued that the defendant exercised her judgment in going through with the second stage of the surgery.
The plaintiff was faced with the difficult situation in which a patient undergoes elective cosmetic surgery and then the defense is she is simply unhappy with the result. Hence, in cross examining the defendant, plaintiff sought to demonstrate the defendant’s lack of experience, her mercenary bent, her ignoring signs of infection and her cavalier attitude toward the patient and the end result. Further plaintiff felt it crucial to portray the defendant as a cosmetic surgeon, not a skilled reconstructive surgeon, who created a worse condition than the plaintiff had when she first came to her. What follows are excerpts of the cross examination of the defendant which sought to accomplish these goals.
The plaintiff first sought to show that defendant was a cosmetic surgeon, not a reconstructive surgeon and had no training or experience in tissue expansion.
Q. Is it correct the first time you saw the plaintiff was in January?
A. Yes it was Q. And at some point is it correct you performed tissue expansion surgery on her?
A. Yes, it is.
Q. And and now, during your residency in general surgery, doctor, did you receive any type of training in tissue expansion surgery?
A. No I did not.
Q. Is it correct that you are known as a cosmetic surgeon? That is what you are?
A. I am a plastic and reconstructive surgeon. That is my board certification and that is what I do everyday.
Q. Doctor, did you author this book, Dr. Doe’s cosmetic surgery for women?
Q. This wasn’t written for physicians?
Q. Lay people, correct?
The fact that defendant advertised herself as a cosmetic surgeon was then established.
Q. Let me show you this advertisement doctor. Is this an advertisement that you had published in the newspaper.
A. Yes Q. That states the Doe Medical Center for cosmetic surgery?
Q. This ad holds you out as a cosmetic surgeon, correct?
A. That ad shows I do cosmetic surgery.
Q. You don’t say anything in this ad about come see me if you are in a car accident and you have serious physical trauma.
Q. The purpose of those advertisements, doctor, that you had published was to get business?
A. I call it practice builder, than to get business.
Q. Practice builder, you are getting patients to come in and see you who want to look better.
Q. That is why they were put in?.
Q. Now, doctor you had at one time in your office an individual whose job it was to publicize you, correct?
Q. That was Jane Doe?
Q. means to get business, correct.
A. Practice builder.
Q. What is a practice builder, to get people into see you, right?
A. A way to bring people in so they can learn about what is available and if they are so inclined, to proceed with surgery.
Q. Doctor, I want to refer to your book again. Do you agree with this statement – I’m reading from page 7: “Beware of doctors who advertise heavily”?
Q. Doctor, you agree with that statement and yet you advertise, is that right?
A. Correct, yes.
The defendant, who was the first witness, was then asked questions which would later serve to confirm the testimony of the plaintiff with regard to her first visit with the defendant.
Q. And did Miss Smith advise you that she was concerned about blood spots or raised areas of the birthmark?
Q. And did she tell you she wanted to know if there was anything that you could do about those?
Q. Did she tell you the blood spots were increasing in size?
Q. And she was troubled about that, correct?
Q. Did you tell her at some point that you could remove most, if not all, of the birth mark?
A. I told her there were operations available to her.
Q. Doctor, at some point you told her did you not that by the process of tissue expansion surgery you could make her look better?
Q. You wouldn’t have done this surgery if there wasn’t a great probability that you couldn’t have made her look better, correct?
Q. You told her that’s what you could do with tissue expansion surgery?
Next the total lack of experience of the defendant in the area of tissue expansion surgery was established.
Q. Now, prior to this patient’s surgery had you ever performed tissue expansion surgery on a hemangioma.
Q. Had you every done tissue expansion surgery on a facial area as large as this patient’s?
Q. Did you ever tell her that you had never done this tissue expansion on a hemangioma.
A. I did not.
Q. Don’t you think she had a right to know, Doctor?
A. No, I don’t think it is important.
Q. Doctor, had you ever been in the operating room and observed tissue expansion surgery performed on a hemangioma prior to your seeing this patient?
Q. Had you ever been in the operating room prior to performing it on her and observed it being done on a facial area as large as hers?
The defendant was then confronted with evidence of a high complication rate with this type of surgery and that she failed to advise plaintiff of this.
Q. There was medical opinion out there in 1985, was there not, that stated when you do tissue expansion, you get alarming complication rates, correct?
A. Depends on what articles you read or what experts you talked to.
Q. Doctor, had you read, and I assume you had, based on your testimony, had you read some of these medical articles that did state that with tissue expansion there was large complication rates?
A. I don’t remember the word alarming. It is not something usually used in medical literature, but I did read articles that said there were significant complications associated with tissue expansion.
Q. As much as over fifty percent of the time, correct, in some of these medical articles?
A. I don’t recall over fifty percent.
Q. Forty five percent?
A, I don’t remember the percentage, But it was significant.
Q. Did you tell her that there was a significant complication rate with this procedure?
Q. Don’t you think she had a right to know?
A. I don’t think it was pertinent.
The defendant was then forced to concede that the hemangioma caused no physical impairment and the only reason to perform surgery was if aesthetically her appearance could be improved.
Q. You recommended this surgery, didn’t you?
A. I did.
Q. And that was because you told her it would make her look better, that was the purpose of the surgery, correct?
Q. Doctor, this hemangioma, this birthmark that she had, was a type of hemangioma that in no way impaired physical function; isn’t that correct?
A. Yes, that’s right.
Q. And doctor, would you agree with this type of birthmark or lesion, if you will, that it doesn’t impair physical function, that it should only be removed if there is great probability of aesthetic improvement.
Q. And, in your opinion doctor, if there wasn’t a great probability of aesthetic improvement with this non-physically impairing lesion, would it be a departure from accepted surgical practices to remove it?
Q. Now. This is elective surgery, correct?
Q. There was no physical impairment, we are in agreement on that?
Q. There was no risks involved if the surgery wasn’t done, was there?
Q. So, there was no reason to do this surgery, if it wasn’t going to improve her appearance, correct?
Q. And there were certainly risks and complications that if they occurred would doom the surgery to failure, correct?
The defendant was then questioned with regard to the second stage of the surgery. The plaintiff’s point was that the defendant should have halted the procedure and thus would have avoided the injuries which ultimately befell plaintiff. It was conceded by the defendant that the plaintiff had signs of a compromised blood supply which could result in infection and necrosis of the flap.
Q. In August, you performed surgery, correct?
A. Yes I did Q. And that was under what is known as general anesthesia?
A. Yes it was.
Q. And the patient was asleep.
Q. And that surgery was for removal of the expander, correct?
And for excision of the portion of the hemangioma, correct.
Q. And for advancement of the flap?
A. Yes Q. And when I say advancement, over the area to be covered, correct?
Q. Now, after you removed the expander, did you observe or become aware of a problem with the blood supply to the expanded skin for the flap?
A. Yes I did.
Q. Your operative report for this surgery states: Duskiness of the flap appears, correct?
Q. That dusky color indicates, does it not, a problem with the blood supply?
A. Yes it does.
Q. Is it correct you first observed that duskiness after you removed the expander?
Q. Is it correct that you noticed the duskiness before you made the total and complete incision necessary for the flap advancement.
A. The incision?
Q. Yes the total, the completed excision.
Q. And when you observed the duskiness you ordered a fluorescein test?
Q. A fluorescein test measures or tests the circulation of the blood, correct?
A. It is a reflection of the circulation.
Q. And your operative report states poor fluorescence is noted, is that correct?
A. That’s correct.
Q. And thats indicative, is it not, of a compromise or impairment of blood supply?
A. Yes it is.
Q. Now is it correct that the effect of a compromise or impairment of the blood supply to the flap is that the skin could necrose and die?
A. It depends on the degree of compromise.
Q. That can happen is that right?
A. Yes, it can.
Q. And the result of that could be extensive scarring correct?
Q. And not only extensive scarring, but it would doom the operation to failure, is that right?
A. It has the potential, the possibility.
Q. And that’s because the expanded skin would be useless, it loses its blood supply, it dies?
A. If the whole thing was cyanotic.
Q. If it gets to the point where there is a compromise to the blood supply, correct?
Q. Well, doctor, in fact, the flap expanded skin did lose its blood supply correct?
A. It eventually lost its blood supply.
Q. And a scar was created, is that correct?
A. That is correct.
Q. And that scar was created by yourself by the surgery you did?
A. Yes it was.
Q. It wasn’t there before?
A. That is correct.
Q. Now, doctor, you could have stopped this surgery, could you not, at the point you realized there was an impairment of blood supply to the expanded skin?
A. Yes I could.
Q. And you didn’t, is that right?
A. That’s absolutely right.
Q. You went ahead with it. Now, doctor, you also knew, did you not, that a compromise or impairment of the blood supply increases the risk of infection.
A. Yes, I know that.
The defendant was next questioned regarding her failure to order intraoperative antibiotics to reduce the possibility of infection.
Q. Was any Ancef given to this patient intraoperatively?
A. I don’t see in the record that it was given.
Q. Was any antibiotic given intraoperatively?
A. There is no evidence that there was.
Q. In fact, in your opinion, would it not be a departure from proper and accepted surgical practices and procedures to have failed to give antibiotics with this surgery.
Q. Doctor, did the patient develop an infection and lose the flap?
A. She developed an infection and a loss of the flap.
Q. And the infection with the resulting loss of the flap was caused, was it not, by compromise of the blood supply to the flap?
A. It could have been a contributing factor.
Q. Well it led, the compromise of the blood supply, led to the infection is that right?
Q. So it caused it.
A. Yes, it was a contributing factor. There were other contributing factors probably.
Q. But the main thing that caused the infection was the lack of blood supply?
Q. Now doctor, on the day after surgery, a complete blood count was taken, wasn’t it?
Yes, it was.
Q. And, in fact, her white blood count was 17.8, wasn’t it?
Q. That is the white blood count, correct?
Q. That is 17.8?
Q. Highly elevated, isn’t it?
Q. And that is consistent with an infectious process.
A. In surgery.
Q. But – but it is consistent, that is a very high blood count?
Q. And it is indicative of an infectious process?
The defendant was then forced to concede that she did not even know what the patient’s white blood count was on the day prior to surgery.
Q. But she did, in fact, develop an infection did she not?
A. Yes she did.
Q. And you were treating this as an infection?
A. I was treating it as a potential infection.
Q. Which developed?
Q. And which destroyed the flap, correct?
A. A portion of the flap.
Q. Destroyed enough of it so she was left with scarring, correct?
A. Correct Q. Now, a complete blood count was taken the day before surgery correct?
Q. And as we discussed before, that is important, includes the white blood count and important because you want to know if there is any type of infectious process going on, correct?
A. Yes sir.
Q. And, it is important to know what the numbers are, whether it is elevated or not; is that right?
Q. And is there a lab slip in the record?
A. Yes there is.
Q. And what does that indicate her white blood count was?
A. Indicates 8.9.
Q. Doctor, that is not her lab slip, is it.
A. No, it isn’t.
Q. That is some other patient’s lab slip?
Q. You didn’t know what her white blood count was, did you?
A. Well this is on her chart. I assumed it to be hers.
Q. But it wasn’t, was it?
A. That is the one we got from the hospital.
Q. So, the lab slip you looked at before surgery to determine whether this patient had an elevated white blood count was some other patients?
A. According to this, yes sir.
Q. So you had no idea what the plaintiff’s white blood count was did you?
A. Not if this is a true record Q. For all you knew she could have had a white blood count of 17.8 before surgery; is that right?
A. Yes, she could have.
Q. And it would be, would it not, contraindicated to perform this surgery if she had such an elevated white blood count?
A. Contrary, you would have to get the implant out and proceed with the surgery. Just the opposite.
Q. Doctor, you would have to administer antibiotics, wouldn’t you.
A. She got antibiotics.
Q. White blood count is meaningless.
A. Significant Q. Significant, something a doctor should know before surgery?
Q. You didn’t know it?
A. Yes Q. In your opinion, departure from proper and accepted medical practice and procedure to have performed this surgery on the plaintiff not knowing her preoperative white blood count.
A. Absolutely not. No matter what the white count was, the same exact thing would have been done.
Q. We are in agreement, you didn’t know what it was correct?
A. According to this record, the wrong slip is on the chart.
The defendant was then confronted with the injuries she caused Q. Doctor, this surgery was a total failure wasn’t it?
Q. Wasn’t successful?
A. Partially successful.
Q. Doctor, we agree the flap lost its blood supply?
A. A portion of the flap lost its blood supply.
Q. And resulted in scarring.
A. Yes Q. And that was scarring you created, correct?
Q. And it was a result of the surgery you performed?
A. Yes Q. You could have stopped that surgery, correct?
A. Yes Q. You didn’t know what the plaintiff’s white blood count was before the surgery?
A. That’s correct Q. Now, following this surgery the plaintiff still had the hemangioma as well?
A. A portion of it Q. Now she also had extensive scarring?
A. Yes Q. She had a disfiguring fold of skin in the area of her mouth?
The defendant was then questioned about the further surgeries performed by a well known plastic reconstructive surgeon which plaintiff claimed were necessitated by defendant’s negligence and were required to correct the injuries she caused Q. Now this surgery that he did, the operation, left oral commissureplasty, revision of left facial scar, that was done to correct, to attempt to correct what you created, correct?
Q. Now, let me direct your attention to the record of the second subsequent surgery.
A. Yes, the operation.
Q. Yes, and this was again by the reconstructive surgeon?
A. Yes Q. Some two years after the first surgery that you did, correct?
Q. And at this time is it correct there was a left oral commissureplasty, and that was to correct the problem with the mouth, right?
A. Yes Q. And there was a Z-plasty, is that correct?
A. Yes Q. That’s for the scarring?
A. Yes Q. And there was a vermillion advancement of the left upper lip?
A. Yes Q. And again we are working in the area of the mouth, correct?
A. Upper lip.
Q. Yes. In the area of the lip or, the mouth?
Q. And there was a defatting of the flap, correct?
Q. Now, looking at the operative report, in your opinion, was this surgery also done to correct the condition created by your surgery?
A. Yes Q. So, both these subsequent surgeries were done to correct what you had created.
A. Yes they were.
Q. And doctor, we are in agreement, are we not, that the surgery, the two surgeries performed by Doctor B were caused by your surgery.
A. Yes sir.
Finally, on redirect the plaintiff strived to hit home to the jury that the defendant was less than candid in anticipation of the Falsus In Uno charge which would be given Q. Now, you also testified, doctor, that laser surgery has many risks and complications, correct?
A. That’s correct Q. Often is not successful?
A. Yes, correct Q. Doctor, I want to read to you from your book on cosmetic surgery, all right?
A. Yes Q. From page 84. Just tell me whether you agree with this statement that you wrote, all right?
A. Yes Q. Under birthmarks – “sometimes unwarranted growths are with us from birth. Capillary hemangiomas, which include port wine stains actually are a form of benign tumors. They are flat birthmarks that look like flat wine colored patches on the skin. These are distressing when they occur on the face. And until recently little could be done about them. However, laser treatments are creating great hope in this area. The treatments are not widely available as yet. So long waiting lists are not uncommon. Ask your physician about the possibility of laser treatment in your own area”.
Do you agree with that statement?
A. No Q. Doctor, this book was put out to educate people, correct?
A. Yes Q. Now, I am not making this up, I am reading from it?
A. Yes Q. “Capillary hemangiomas which include port wine stains actually are a form of benign tumors.” That is what you wrote, that wasn’t true, was it?
A. Well Q. Not True?
A. It was a variance of the truth.
Q. Variance of the truth?
A. Yes Q. Variance of the truth?
A. Yes Q. Doctor, this book under – gives your credentials, one reading it would think, would rely on it, would they not?
A. I wonder how much they rely on it. I hope that they take it and weight it for its face value. Certainly not to substitute for the surgeon, and I tell that to people. Don’t take my book, don’t take literature, don’t take anything as an authority. You want an informed an interview, you want to make an informed decision, I am your authority. It is not my book, it is not what you read in the newspaper, it is not what you see in pamphlets.
Q. Doctor, they certainly would have no reason to think, would they, that what you wrote was a variance of the truth, would they yes or no?
A. I don’t know.
The trial continued until on the morning of summation the defendant offered to settle the case for a substantial sum which the plaintiff accepted. The jurors later explained that based on the defendant’s testimony they felt that she was in fact not qualified to perform the surgery, that it was not indicated and most importantly that she was not a credible witness.