A Personal Injury Case Study
This case demonstrates one of many plastic surgery horror stories that happen in the U.S. every year. We'll discuss important medical malpractice legal issues including specific damages, liability, settlement negotiations, and the final case resolution.
Melinda is a 40-year-old mom who was unhappy with her physical appearance. She visited Pat the Plastic Surgeon for a consultation on a number of procedures and finally settled on breast augmentation and a tummy tuck.
After completing all the necessary releases, Melinda went in on the day she was scheduled for surgery. Dr. Pat failed to inform Melinda that he had never performed a breast augmentation before and was not board certified. While in surgery, Dr. Pat failed to notice that she was allergic to morphine and prescribed this for her pain. When Melinda came out of surgery she was in significant pain and began vomiting violently.
Melinda was sent home with anti-nausea medication, however her husband brought her to the emergency room within 12 hours because she never stopped vomiting and had developed a fever and severe dehydration.
While in the ER, the doctor discovered that she had been given morphine, was experiencing a violent reaction to the medication and had developed infections at her breast incision points. She was rushed to surgery where gauze was found to have been left inside of her breasts.
Dr. Pat never performed the tummy tuck despite charging her for the procedure. Within 3 months, Dr. Pat was out of business and Melinda did not get a refund. Melinda had heard of plastic surgery horror stories over seas, but she never thought something like this could have happened to her in the United States.
This is clearly a medical malpractice case on the part of Dr. Pat. The law requires a medical provider to perform with the same degree of medical care and skill of similar physicians in their community. In Melinda's state, surgeons are required to perform 100 assisted procedures before performing one alone and they are required to be board certified.
Here, Dr. Pat had never performed any breast augmentations and was not board certified. Furthermore, he failed to register her allergy to morphine which was clearly noted in her file. This is not something that a doctor can afford to miss since the repercussions can be deadly. He then permitted her to be miserable by sending her home with nothing more than anti-nausea medication.
Dr. Pat failed to remove gauze from the incision points of Melinda's breasts which caused infection. He also never performed a procedure for which Melinda was charged. These are all things that reasonable medical providers in the community would never do.
Melinda's failed breast augmentations resulted in an infection and the breasts were aesthetically unappealing requiring additional procedures to correct.
For Melinda, the end result was worse than had the procedure never been done in the first place. The infections from foreign objects (the gauze) resulted in a low grade fever and a mild staph infection.
Melinda had two causes of action against this doctor, breach of contract and medical malpractice. The action for breach of contract was brought since she paid for a procedure that the doctor never performed. For this she settled at $12,000 (the cost of the tummy tuck) plus attorneys fees of $4,500.
For the medical malpractice claim, she demanded $85,000. Her ER visit was $4,000 and her subsequent reconstructive surgery was $12,000, however the pain and suffering that she endured was priceless.
Her husband had a claim for loss of consortium which is allowed in most jurisdiction and refers to the loss of affections, intimacy and family responsibilities that the injured party performed pre-accident. He valued this claim at $16,000 ($4,000 times the 4 months that Melinda was ill and/or recovering).
Melinda and her husband submitted a claim to Dr. Pat's insurance company even though Dr. Pat was out of business by the time they sent the demand. Dr. Pat had insurance in place at the time of the surgery with a policy limit of $2 million.
Even though Melinda had a claim against the hospital in which Dr. Pat worked as a surgeon (under the theory of "respondeat superior" which holds employers liable for the negligent acts of their employees), she chose not to sue them.
Dr. Pat's insurance company settled Melinda's medical malpractice claim for $75,000 and the loss of consortium claim for $5,000 because these are difficult to value. Dr. Pat paid the $16,500 for the breach of contract claim personally.Important Points...
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