In October 2012 I discussed a medical malpractice suit brought against a plastic surgeon and surgical clinic practicing in the Clear Lake area of Houston. The patient claims that she underwent bilateral breast augmentation mammoplasty (i.e. breast implants) at the doctor’s surgery center. Following the procedure she began to suffer pain, chills, swelling and drainage. Her suit claims that, on four separate occasions, she brought her postoperative complications to the attention of the office staff, but that “she never spoke with or was seen by the doctor or anyone who had medical training”. As a result, she claims, the infection was not timely diagnosed and thus drastically worsened and abscessed. This, she claims, necessitated the emergency removal of the implants by another physician, at a cost of over $26,000.
The doctor and clinic have now designated their retained expert witnesses and also provided more detail about their defenses. They claim that they were in no way negligent in their care of the patient. As a fallback position, they claim that, even if the patient’s “infection had been detected earlier, it would still have been necessary to remove the implants, and the outcome would not have been any different”.
This is a very typical tactic for healthcare providers defending postoperative infection claims. Texas law holds that the mere fact of a post-op complication does not necessarily mean that the surgeon or hospital was negligent. After all, post-surgical infections can occur even if the best possible treatment is provided. What is important is that reasonable care is utilized to try and prevent infections, and to timely catch and treat an infection if it does occur.
So it is a legitimate tactic for a physician facing a postoperative complication case to claim “I wasn’t negligent, but even if I was I should not be liable, since the outcome would have been the same even if I had acted correctly”. This provides the defendants in this case two levels of defense. The jury may or may not find that they were negligent. But even if they do find them negligent, they may still escape liability if the jury decides that, even if they had timely diagnosed and appropriately treated the infection, the implant removal would still have been required.