By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
(2004-2013)
California Hospital Medical Center
Los Angeles
News: A jury in Washington State recently awarded $13 million to a cosmetic surgery patient and her husband after finding her physician liable for medical malpractice. The procedures left the patient with a painful course of healing and significant scarring on her abdomen and other areas. The case also involved the physician’s failure to adequately disclose her credentials and surgical risks to the patient.
Relying on the physician’s online advertising, the patient underwent liposuction, abdominoplasty, and other procedures. The patient alleged the physician not only botched the procedure, but also used a non-FDA-approved device, and failed to perform an adequate preoperative assessment of the patient, who was diagnosed with diabetes. The patient also alleged the surgeries, performed with oral sedation, resulted in persistent pain, scarring, and emotional distress.
The jury found the physician performed negligently and failed to obtain the patient’s informed consent regarding risks of the procedures, awarding the patient $11 million in damages and her husband $2 million for loss of consortium.
The case emphasizes the importance of transparent communication, informed consent, and proper aftercare in medical practice.
Background: The patient sought a weight loss consultation after viewing advertisements on the physician’s website. The physician recommended a multiday procedure, including liposuction for several areas of the patient’s upper body, as well as a tummy tuck, breast lift, and arm lift. But before, during, and after these surgeries, the physician and her team committed multiple acts of medical negligence.
Before the procedure, the physician failed to obtain the patient’s informed consent by misrepresenting her credentials. The physician claimed to be a board-certified plastic surgeon, but she was never board certified in any kind of surgery.
The physician also failed to explain the patient’s diagnosis of diabetes could complicate her recovery. Diabetic patients undergoing surgery are at increased risk of tissue death. In fact, the plaintiff’s attorneys argued the physician told the patient these surgeries would improve her diabetes. The patient, a cigarette smoker, also was never advised to stop smoking after the procedure.
The plaintiff attorneys argued the physician also was negligent in performing the surgery, including by removing too much skin, which made it hard to close the incision, and worsened the patient’s scarring. They claimed the physician also used a device named Renuvion/J-Plasma, which had been cleared by the FDA for soft tissue surgery but not for aesthetic uses. The physician used oral sedation she referred to as “Cinderella anesthesia” on the patient, which is a concoction of prescription drugs that cause postoperative memory issues. The plaintiff attorneys claimed the physician had a history of unorthodox and improper practices during these procedures, including restraining patients with handcuffs and weights during surgeries.
After the surgery, the patient experienced problematic and painful healing. There was significant scarring on her abdomen, ongoing pain, an arm infection, and depression. Follow-up visits revealed additional problems, including breasts not lifting as promised and permanent scarring. When the patient voiced these concerns, the physician attributed them to the patient’s sensitive skin. In fact, the physician told the patient the surgeries went perfectly, and her unique skin caused her healing issues. Eventually, the patient sought advice from other physicians, who informed her that diabetes can hinder healing after cosmetic surgeries.
The patient’s lawsuit centered on negligence in performing the procedure; a lack of informed consent by failing to disclose all the risks associated with the procedures; and deceptive practices by the physician and her team, including by misrepresenting credentials. The patient claimed economic losses and emotional distress. The jury found in favor of the patient, awarding her and her husband $13 million.
The state medical board suspended the physician’s license after several other patients came forward with similar allegations of negligence. In October 2021, the physician signed a Stipulated Findings of Fact, Conclusions of Law, and Agreed Order to Cease and Desist, which required her to cease operations until she received the proper credentials.
What this means to you: A significant portion of the patient’s case centered not on the botched medical procedure, but on the lack of clear warnings given to the patient and lack of informed consent obtained by the physician and her team. For instance, the physician was aware of the patient’s diabetes, but rather than informing the patient that diabetes was known to cause complications in healing after these types of procedures, she told the patient these surgeries could help her condition. The physician downplayed the serious risks that come with some cosmetic procedures and healing. The jury’s award shows that clear communication about potential risks, possible outcomes, and recovery procedures is fundamental — and that begins long before the surgery. The jury found the physician and her staff failed to disclose critical information that would have dissuaded a reasonable patient from undergoing surgery.
The case also underscores the fact that a reasonable patient can rely on a physician’s representations of their credentials and success of procedures on his or her website. The patient’s attorneys argued the physician falsely represented she was board certified in plastic surgery. The physician was never board certified in plastic surgery or any other surgical specialty. The jury’s verdict makes clear that a reasonable patient is not expected to make independent verifications of a physician’s credentials or board certifications, even before undergoing significant surgical procedures.
The physician and her staff failed to explain the patient’s history of diabetes could complicate her recovery. Understanding a patient’s medical history and clearly communicating the risks it comes with is paramount. The jury sent a clear message that a physician’s responsibility extends to understanding these histories and tailoring medical advice accordingly.
The case further highlights that scarring left over from medical procedures is not simply physical, but psychological — for both the patient and her husband. Here, the jury was not shy in awarding the patient and her husband significant noneconomic damages for their pain and suffering due to the patient’s postoperative anguish and appearance. Although it is difficult to say what portion of the jury’s award was due to physical suffering as opposed to mental anguish and depression, it is worth noting that it awarded millions of dollars to the patient’s husband for loss of consortium, which suggests the jury placed a great weight on the couple’s mental suffering.
More broadly, it appears this physician preyed on patients who were desperately seeking a quick way to change their image. Unfortunately, it is not until negative outcomes mount and lawsuits are filed that these physicians are finally noticed by state medical boards that ultimately withdraw the physician’s license to practice within a specialty — or even practice at all. Often, these physicians practice in surgical centers outside the walls of the hospital. Hospitals designate surgical department leadership and provide oversight of the staff, including review of credentials, proctoring, and remedial procedures for those physicians who do not practice within the established rules and regulations. But monitoring physicians who practice independently outside the controlled hospital setting is difficult and usually inadequate in many situations, such as this one. There are sources available for prospective patients to learn more about a physician’s practice, but most patients rely on the assumed integrity that accompanies their preconceived notion that physicians follow the oath to do no harm.
When it comes to punishment for scandal, conventional wisdom holds: “It is not the crime — it is the cover-up.” It is unclear how much of the verdict was due to the physician’s postoperative “cover up,” but it is worth noting the physician and her staff did themselves no favors by repeatedly informing the patient that postoperative pain and scarring was simply due to the patient’s unique skin condition. Not until months after the surgeries, when the patient began to seek other medical opinions, did she begin to learn the extent of the negligence.
Although this case includes elements of medical negligence before, during, and after surgery, it nonetheless is a stark reminder of some fundamental lessons when it comes to patient care. First, clear communication always is key. That begins early during the initial consultation. Patients with difficult medical histories must be told they might experience complications others might not — or even be dissuaded from undergoing elective surgeries altogether. Second, although it needs little explanation, adhering to industry-standard practices and procedures is critical. No physician or medical group wants to face allegations they administered “Cinderella anesthesia” to patients, or anything else that would cause a jury concern. Third, it is important not to forget juries will punish misconduct harshly when they see fit. Here, the jury awarded not only the patient millions of dollars in damages, but it also awarded her husband millions of dollars for loss of consortium.
REFERENCE
- Decided Aug. 4, 2023, in King County Superior Court of Washington, Case Number No 22-2-10826-6.
A significant portion of the patient’s case centered not on the botched medical procedure, but on the lack of clear warnings given to the patient and lack of informed consent obtained by the physician and her team.
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