In 2006, the plaintiff, a 40-year-old female with a family history of breast cancer, was diagnosed positive for carrying the BRCA-II breast cancer gene. She elected to have prophylactic bilateral mastectomies and two-stage breast reconstruction with implants. She also desired a reduction of one to two cup sizes. After numerous consultations, the plaintiff elected to have her implants placed entirely above her pectoralis muscle in the subcutaneous space. At the time of her surgery, many reconstruction patients had implants placed partially below the muscle with only the lower portion placed subcutaneously.
In early 2007, the plaintiff had areola-sparing mastectomies performed by a breast surgeon followed by the first stage of the reconstruction – placement of tissue expanders – by the defendant. Three months later, just before the tissue expanders were to be exchanged for final implants, she developed redness in her right breast. The defendant postponed placement of final implants and performed a wash-out of the affected breast. Cultures were negative for infection and the tissue expanders were exchanged for final implants one month later. Cultures again were negative.
After surgery, the plaintiff complained of excess ptosis (drooping) and visible implant rippling as well as numbness radiating to her arms. She sought a second opinion from the chief of plastic surgery at a top cancer hospital and was told her breasts had excellent shape and ptosis.
Nevertheless, the defendant agreed to revise plaintiff’s reconstruction but explained that because of the size reduction she desired, additional skin would have to be removed which would result in her losing her areolas. She agreed and the revision was performed, resulting in resolution of her numbness and a cosmetic appearance with which she was pleased. The defendant performed a planned nipple reconstruction 10 months later. One of the nipples suffered delayed healing, but both eventually healed. Five months later, the defendant performed a second revision to add a tissue matrix for additional cosmetic coverage in the lower portion of the breasts. She had a brief episode of redness in her left breast eight months later, which resolved. During the course of her care, plaintiff also sought additional cosmetic treatments from defendant. Several months after her last visit with the defendant, she saw the chief of plastic surgery at another teaching hospital who noted she had a very good result. She sought no other care of her breasts for two years.
Plaintiff filed suit four-and-a-half years after the initial surgery and two years after her final care with defendant. She claimed her implants should have been placed below-the-muscle and that as a result she suffered excess drooping, rippling, infections, loss of areolas and capsular contraction, which occurs when the scar tissue surrounding an implant shrinks and becomes tight. During and just after the course of defendant’s care, she had seen four other plastic surgeons, including the two chiefs above and a president of the Virginia Society of Plastic Surgeons, none of whom recommended her implants be placed below-the-muscle. After filing suit, a fifth plastic surgeon noted she had an outcome many plastic surgeons and patients would be quite happy with. Testimony from all five surgeons was introduced by the defense at trial.
Defense experts testified the above-the-muscle approach complied with the standard of care. They explained the below-the-muscle approach can result in animation deformities which cause the breast to be misshapen and malpositioned when the chest muscle is flexed. They also noted rippling and capsular contracture are common to breast reconstruction surgery, a point the plaintiff’s expert conceded. They noted none of the numerous cultures taken during and after defendant’s care ever provided proof of infection. The loss of plaintiff’s areolas was a result of her desired reduction in breast size and the need to remove excess skin left after her mastectomy, not as a result of where her implants were placed. At the conclusion of the evidence, the jury returned a verdict for the defendant.
Type of action: Medical malpractice
Injuries alleged: Complications following breast reconstruction surgery including implant rippling, infection and tightness
Court: Norfolk Circuit Court
Tried before: Jury
Name of judge: Everett A. Martin Jr.
Date: June 20, 2013
Special damages: Approximately $224,000
Demand: $2,000,000 (ad damnum)
Verdict or settlement: Defense verdict
Attorneys for defendant: Kimberly A. Satterwhite and Todd D. Anderson, Richmond
Insurance carrier: The Doctors Company