When cosmetic breast surgery performed by a physician who has not gone through formal plastic surgery training has an unintended result and a lawsuit results, the plaintiff and defendant will most likely seek the opinions of plastic surgeons on whether the defendant physician comported with the standard of care. As the following case study indicates, it can be difficult for plastic surgeons to support such surgery.
Allegation
Negligent bilateral breast implant removal and lift resulted in necrosis, subsequent removal of the left nipple and areola without informed consent, and the need for multiple surgeries.
Case File
During a yearly physical with her OB/GYN, the patient complained of her large, drooping breasts. Five years earlier, she had had a successful breast augmentation, but now she had breast asymmetry, with her left breast larger than the right, with significant bilateral breast ptosis and a sternal-to-nipple distance of 33 cm on the right and 35 cm on the left. The OB/GYN recommended removing the implants and doing bilateral breast lifts. She told the patient she could do the procedure in her office surgical suite.
Discussion
The OB/GYN had been supplementing her practice with breast enhancements, lifts and reductions, as well as implant removal and replacement, for the past three years. As she had no privileges to do breast surgery at a hospital, the OB/GYN did all of her breast surgeries in her office surgical suite. During medical school she had done a plastic surgery rotation, and she had recently taken off a year to train in breast surgery and other cosmetic procedures with a plastic surgeon who was a friend of hers. Although she had never done a mastopexy on a patient with such a severe degree of ptosis, she felt competent to perform the surgery.
During the informed consent process, the patient was advised that necrosis of the nipple was a known risk of the procedure and that she would have scars. During the surgery, the OB/GYN removed the breast implants and did a bilateral mastopexy using an inferior pedicle technique. The patient’s surgery, although it took three hours longer than would be expected, was completed without apparent complications.
The OB/GYN saw the patient a week after the surgery, at which time she noted the surgical site looked good, with some expected swelling. Dressings were changed and the patient was advised to return in one week. When the patient returned, the OB/GYN noted decreased swelling but epidermolysis of the left nipple-areolar complex (NAC), which was red but not grossly ischemic. The patient informed the OB/GYN that she had planned a vacation for the next week. Although the OB/GYN thought a vacation at this point was not a good idea, she did not object to it. When the patient presented a week later, her left NAC was non-viable. The OB/GYN told her she was going to have to excise the necrotic tissue but did not tell her she was going to remove the nipple. The OB/GYN performed the operation. The patient was then advised to return in one week, but she never returned.
The patient filed a lawsuit shortly thereafter, accusing the OB/GYN of medical negligence and lack of informed consent. The lack of informed consent claim was based on the OB/GYN’s failure to obtain the patient’s consent prior to removing her NAC.
Expert Opinions
After filing the lawsuit, the patient’s attorney had the patient examined by a plastic surgeon. The plastic surgeon faulted the OB/GYN for using the inferior pedicle technique instead of a superior pedicle technique. When the patient had her breast augmentation five years earlier, the physician positioned the implants through an inferior areolar incision, which may have caused some compromise of blood supply to the NAC. According to the examining plastic surgeon, using an inferior pedicle technique had further compromised blood supply to the NAC, increasing the risk of necrosis and loss of the NAC. He also thought the results of the mastopexy were indicative of the OB/GYN’s lack of requisite plastic surgery training:
- The patient presented to the plastic surgeon with 3.8 cm, anchor-shaped scars, which are normally 0.2 to 0.3 inches wide, in addition to the absent NAC.
- There was suprasternal to nipple asymmetry, with a distance of 23 cm on the right compared to 21 cm on the left.
- There was significant “bottoming out” of both breasts, with the nipple-to-inframammary fold distance of 14 cm on the right and 13 cm on the left (normal is 9 to 11 cm).
Defense experts were not as critical, but the general consensus among them was that this case would be easier to defend if it had involved a board-certified plastic surgeon. Although they thought the level of ptosis was great enough to make the mastopexy challenging even for experienced plastic surgeons, they were troubled by the prolonged operative time, which called into question the OB/GYN’s competency in performing this type of surgery. Finally, the experts felt the OB/GYN’s failure to obtain consent for the removal of the NAC was not necessarily negligent but was instead poor bedside manner.
The case was ultimately settled due to the tenuous standard of care support and the OB/GYN’s desire to settle the case.
Medical Liability Risk Management Recommendations
- Maintain competence through hands-on training and didactic continuing medical education courses to keep up with improvements in cosmetic procedure techniques.
- Honestly evaluate your skill at performing all of the cosmetic procedures you offer, or have a knowledgeable colleague make an assessment.
- Do not perform a cosmetic procedure that is outside of your training, skill or comfort level.
- Recognize that if you perform procedures typically performed by physicians of another specialty, you will be held to the standard of the other specialty.
- Obtain the patient’s prior surgical records when the prior surgery may affect the outcome of the current surgery.
- Do not let the patient dictate treatment or post-treatment instructions. If the patient plans to engage in activities that are contraindicated (e.g., going on vacation too soon after surgery), especially if the activities are likely to compromise the cosmetic result, explain the risks of the activity and document that the patient has been warned of the risks of nonadherent behavior.
- Document nonadherent behavior.
- Be compassionate when describing unanticipated outcomes and how they will be addressed.
- Be clear about the possibility of scarring. Make sure the patient knows that genetic make-up can significantly affect healing.
- Do not suggest cosmetic procedures to patients who do not ask for them.
Before expanding a practice to include cosmetic services, contact your medical professional liability insurance carrier to determine if there are specific underwriting guidelines and requirements that must be met before the performance of cosmetic services will be approved for coverage under your policy. NORCAL Group policyholders should contact Customer Service at 844.4NORCAL to discuss coverage and to make proper arrangements.
