Unexpected scarring that altered the appearance of a cancer patient’s prosthesis led to bitter dissatisfaction.

Dr. P, age 52, is an experienced plastic surgeon specializing in breast reconstruction after mastectomy. This procedure provides aesthetic and psychological benefits to breast cancer patients. Early in Dr. P’s career, augmentations and reductions made up the bulk of his cases, and it was only natural for him to progress to reconstruction a few years later. In fact, it was a point of pride that fellow breast surgeons would recommend him to their patients. No one could ever have predicted that one such recommendation would land Dr. P in the middle of a malpractice lawsuit.

Ms. L was a 60-year-old woman who had been referred to Dr. P after undergoing a total mastectomy for the treatment of breast cancer. Her breast had been removed and the skin flaps had healed completely. Dr. P had reached that step in the process of placing a prosthesis and adding a nipple to achieve the desired result. The patient stayed in the hospital overnight after her surgery. As was his usual practice, Dr. P removed the compression dressings that had been applied in the operating room. Although Ms. L was satisfied with the overall size and shape of her reconstructed breast, she was not happy with the location of her nipple, which was very medial and, according to her, “looked a little strange.”

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Dr. P replaced the patient’s dressings and scheduled an appointment for her to see him in his office one week later. At that appointment, Dr. P admitted that the result was “not as [he] would have hoped.” He blamed the bad position on the formation of scarring, which was, he said, distorting the breast and changing the position of the nipple. He felt that the original position of the nipple immediately following surgery had been more anatomical. Ms. L disagreed, stating that she had noted its bad position in the recovery room.

Not long thereafter, Ms. L visited the offices of a plaintiff’s lawyer to ask for advice about suing her clinician. The plaintiff’s lawyer arranged to have her case reviewed by a group of physicians who advertised in the law journals as “MDs for Quality Care.” On receiving their comments, the lawyer filed a malpractice suit against Dr. P. After receiving notification of the lawsuit, the disappointed surgeon sent the court papers to his insurance company.

The case slowly made its way through discovery, resulting in a pile of depositions and paperwork nearly three feet high by the time the trial started. The plaintiff’s lawyer argued that the nipple was clearly misplaced at the final stage of the breast reconstruction and that the position of the nipple was obvious when Dr. P removed the dressing postoperatively. “Ladies and gentlemen,” he told the jury, “[the patient’s] reaction says everything: ‘It looked strange.’ ” He followed up this argument with expert testimony from one of the physicians from MDs for Quality Care, who stated that immediate malposition of the nipple represented malpractice. A later displacement could be explained by subsequent scarring, he went on, but this was not what had happened in Ms. L’s case.

Dr. P took the witness stand and turned his Hollywood-idol good looks and considerable charm on the jury. He willingly conceded that the patient’s outcome was not optimal but argued that Ms. L’s problems were primarily caused by the unpredictable scarring that had followed her surgery and deformed the breast in the area of the nipple. The plaintiff’s lawyer performed a penetrating cross-examination, especially with regard to the difference between the patient’s version of when the malposition first became apparent and Dr. P’s version. He wrapped up his case by arguing that the shape and appearance of a breast, including the position of the nipple, is as important to a 60-year-old widow as it is to an 18-year-old model and encouraged the jury to decide accordingly. Obviously, he concluded, Dr. P had been negligent in operating on this breast cancer victim and, while seeking to cure one deformity, had created another.

After a short deliberation, the jury awarded the patient $300,000.

Legal background

Modern medical practitioners have come to understand the damage to a patient’s self-image following deforming operations, such as mastectomy. Hence, reconstruction to restore the normal appearance of the breast has become commonplace. Plaintiff’s lawyers have also picked up on this trend and utilized it for their own profit. These days, plaintiff’s lawyers commonly ask for large awards based on “damage to self-image” in malpractice cases in which there is no loss of physical function.

Jury awards in cosmetic damages cases are also arguably related to the growing emphasis society places on appearance and the possibility of achieving physical perfection through advances in cosmetic surgery. In Ms. L’s case, the jury responded to the plaintiff’s lawyer’s argument regarding the appearance of a misplaced nipple and its importance to women of all ages. Arguments for such intangible damages as these can be expected more often in the future, and juries, sensitized to such concepts through the media, can be expected to respond sympathetically.

Risk-management principles

Disappointment stemming from patients’ unmet expectations plays a considerable role in lawsuits involving intangible damages. A portion of the informed consent process should be devoted to educating the patient about realistic expectations. This is even more important in plastic surgery than in other specialties because of the exaggerated hopes frequently encountered in that field (due in part to stories in the popular media).

To encourage a realistic viewpoint, a number of clinics provide the patient with a computer-generated representation of the expected finished appearance following a cosmetic procedure. The hidden danger is that the patient may not feel that the results resemble the computer simulation closely enough. Indeed, some clinics that adopted this practice as a potential marketing tool in the 1990s have subsequently abandoned it as being too risky. Although intended to keep expectations realistic, it frequently had the opposite effect.