In October 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 post-op 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 became severe and abscessed, which necessitated the emergency removal of the implants by another physician, at a cost of over $26,000.
My belief was that the doctor would argue that infection is a common, and in some cases unavoidable, post-operative surgical event, and that the mere fact of an infection does not establish evidence. But the patient’s response would be that it is not the infection she suing over, but the alleged neglect in recognizing and treating it.
The patient has recently disclosed her expert witnesses in the case. Texas medical malpractice suits are driven completely by expert witnesses. If a patient files a suit, her claim will be dismissed if she fails, within 120 days of filing of the suit, to serve a report from a qualified expert, establishing that the doctor/hospital was negligent and that the acts of negligence led to the damages the patient is claiming. If the report is not filed the court can order dismissal of the case and require the patient to reimburse the doctor/hospital their attorneys’ fees.
The idea is that this requirement discourages the filing of frivolous medical malpractice claims. And there is a great deal of logic to the proposition that if a patient can’t find a doctor to support her claims, the claim shouldn’t go to court.
Unfortunately, a cottage industry has developed from doctors who, for a fee, will be happy to write a report supporting whatever theory of malpractice the patient’s lawyer wants her to. But a good defense lawyer can typically pick these doctors apart, arguing that they are nothing but “hired guns”.
In the Clear Lake malpractice suit, however, the patient has found an extremely competent and credentialed physician to support her case. He appears to be a professor of plastic surgery at the Johns Hopkins School of Medicine. This doctor believes that the defendants in the suit were negligent for the following reasons:
1. He believes that an appropriately licensed medical professional, such as a physician, physician’s assistant or nurse should have evaluated the patient post-operatively, especially when she had herself raised a question of post-op complications;
2. The patient’s treatment was delayed because a sulfa-containing antibiotic was prescribed, when it was clearly documented in the doctor’s records that the patient was allergic to sulfa.
The doctor has already retained an expert to counter this physician, but his opinions have not yet been disclosed.
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