Malpractice Case: Surgery Leads to Deformity; Was Too Much Tissue Removed?

Jacqueline Ross, PhD, RN


October 25, 2021

This case illustrates the legal dangers that can arise after an adverse surgical outcome.

A 25-year-old woman consulted a plastic surgeon about a breast lift. She weighed 157 pounds and her breasts were size 37D. The surgeon recommended breast lifts with implants. The patient signed a seven-page consent form that outlined specific risks, including tissue necrosis. She was given antibiotics prior to her mastopexy and augmentation.

During the 7-hour surgery, the surgeon removed 327 g of tissue from the left breast and 414 g from the right. Photos taken postoperatively showed pink nipples. Antibiotics were given following surgery.

At the office visit 1 week following surgery, cultures were negative but levofloxacin (Levaquin) was again prescribed. During the second office visit 2 days later, the surgeon applied a crisscrossed bandage to the chest area because of swelling. Four days later, external ultrasound was used to evaluate the cause of the swelling. It was noted that the areolae were changing color. The surgeon asked the patient to return to the office in 2 days.

During the next office visit, the surgeon noted clear drainage. An examination of both breasts revealed blisters and erythema around incision sites. The blisters were debrided; cultures grew Alcaligenes, and the patient was referred to an infectious disease specialist. He noted bilateral necrosis in areas around the nipples, with vertical incision inflammation consistent with infection. He started the patient on IV antibiotics.

Two weeks later, the infectious disease specialist noted hardened black eschar (dry, dark scabs) involving both nipple areas, with some wound dehiscence and underlying fat necrosis. Ten days later, wound cultures were positive for Pseudomonas aeruginosa. The patient was started on Levaquin and referred to a wound care specialist who started hyperbaric treatments.

The patient underwent several stages of reconstructive surgery. She now has severe scars and deformity of both breasts. A claim was filed against the plastic surgeon.

Expert reviewers were critical that too much breast tissue had been removed and that the implants compromised the patient's circulation. The case ultimately settled.

While it could be debated whether the surgeon removed too much breast tissue or made an error at another point in the procedure, it's a fact that poor surgical outcomes happen. To lessen your legal risk, it's beneficial for physicians to help patients set reasonable expectations about outcomes before procedures. In addition, discuss with patients the possibility of less-than-optimal results and complications that could delay recovery and affect appearance.

An informed patient often has more realistic expectations and may be more understanding if results take a turn for the worse.

This case comes from The Doctors Company claims database. For more case studies on this topic, see "Plastic Surgery Closed Claims Study."

Communication Oversight Triggers Legal Claim

Even if you take all the correct steps during a procedure, a physician's duty can still fall short if all necessary information is not communicated to a patient. This case demonstrates why the informed consent process is so essential and how easily a communication misstep can trigger an unfortunate legal outcome. A patient in her late sixties presented to a pain management physician with pain in her cervical and lumbar regions. She was treated with multiple cervical epidural steroid injections and lumbar epidural steroid injections.

A few days after a recommended medial branch nerve block, the pain management physician did a radiofrequency ablation of a medial branch nerve. She had another ablation 2 weeks later. At a follow-up appointment, she reported that the pain had been reduced 50%.

Two months later, the patient reported continuing pain in the lumbar region. The pain management physician recommended a trial lead implantation of a spinal cord stimulator, a device that can alleviate pain through low levels of electricity sent directly into the spinal cord. The patient agreed, and she had excellent coverage during the trial of neuromodulation. The recommendation was to proceed forward with the permanent implant.

The pain management physician reviewed the procedure with the patient. The leads were placed, under fluoroscopy, to upper portions of C2 and C3, with anchoring sleeves slipped over the leads and attached with sutures.

Two months post-procedure, the patient returned to the pain management physician's office complaining of a headache and some lumbar pain. This pain continued, and the patient sought a neurology consult. The impression was spinal cord stimulator migration, occipital neuralgia, and cervical degenerative disc disease.

The headaches continued. The pain management physician did a series of occipital nerve blocks. Five months after the procedure to implant the permanent stimulator, another provider removed a scalp mass that was discovered to be an anchor from the stimulator leads. The patient issued a claim against the pain management physician.

What Did the Experts Say?

The expert physician reviewers noted that it was not below the standard of care to leave the anchor in after the implant. However, it was below the standard of care not to inform the patient that there were anchors left in place. Additionally, one expert physician reviewer opined that the pain the patient was experiencing was not from the anchor but was related to occipital neuralgia. The lack of communication regarding the anchor led to a small settlement.

Although the physician was not deemed negligent in the implantation of the spinal cord stimulator, this case turned on the lack of communication with the patient regarding the leftover anchors. The scenario highlights the importance of having a strong informed consent process in place. Physicians should ensure that patients fully understand all important elements of a procedure and ask that patients repeat the information back to ensure comprehension.

Informed consent does not completely eliminate liability claims, of course, but a solid rapport between doctors and patients based on comprehensive information exchanges can help decrease patient disappointment about an outcome and lessen the risk of claims.

This case comes from "Pain Management Closed Claims Study," published by The Doctors Company.


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