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Expert Plastic Surgeon’s Knowledge of Procedure Stale; Breast Reduction Nipple Graft


A woman underwent bilateral breast reduction surgery. Because so much breast tissue needed be removed, the appropriate procedure involved a free nipple graft, which means the nipple and areola are completely cut away, and once breast tissue is removed, the nipple and areola are then grafted back onto the remaining breast. One challenge with this technique is to re-establish adequate blood flow to the nipple complex. This specific type of breast reduction surgery was quite rare.

 

The doctor who performed the procedure also saw the woman six days after the surgery. Because that doctor was out of town for several days, another doctor and his practice saw her at her follow-up appointment on the ninth day after the procedure was performed. The doctor who performed the procedure saw her at her follow-up appointment on the 13th day after the procedure was performed.

 

The medical records documenting these visits showed the development of post-procedure complications. The breast tissue around the nipple complex during this time became necrotic. An infection developed in the dead or dying tissue. At the day six appointment, the doctor who performed the procedure ordered additional oral antibiotics. At the day nine appointment the other doctor change the oral antibiotic, administered an injection of another broad-spectrum antibiotic, and ordered blood work. At the day 13 appointment the doctor who performed the procedure admitted the woman to the hospital.

 

The woman stayed in the hospital for an extended period of time. She underwent several surgical procedures to remove necrotic tissue. She was left with a bilateral mastectomy.

 

The woman sued the doctors and their practice group for medical malpractice. The woman timely filed a qualifying expert report written by a board certified plastic surgeon. The woman’s expert plastic surgeon maintained an active practice in plastic surgery with the majority of cases involving recontouring of the torso. About half of the recontouring procedures involved breast procedures. The doctors did not challenge the qualifying medical report at the outset of the litigation.

 

The woman’s expert plastic surgeon provided a report that criticized the doctor who performed the procedure in five areas. First, the report stated that the woman’s pre-procedure bloodwork showed her to be anemic. Medical literature suggests the correlation between anemia and postoperative infection. The woman’s expert plastic surgeon opined that he elective procedure should have been postponed until after the anemia was addressed. Second, based on his review of the operative report, the woman’s expert plastic surgeon opined that the doctor who performed the procedure is not adequately familiar with the free nipple graft breast reduction technique and should have either sought the assistance asserted more familiar with the procedure or elected not to carry it out. Third, the woman’s expert plastic surgeon opined that the doctor who performed the procedure failed to timely diagnose and treat the woman’s postoperative breast infections and tissue necrosis. Fourth, based on the woman’s claim that she was not informed that this particular technique would prevent her from breast-feeding, the woman’s expert plastic surgeon opined that the doctor failed to disclose this known and certain side effect of the free nipple graft procedure. Fifth, the woman’s expert plastic surgeon opined that the doctor who performed the procedure removed too much breast tissue such that the skin flap was too thin, leaving it more susceptible to necrosis and infection.

 

The woman’s expert plastic surgeon’s report criticized the doctor who provided one follow-up visit for failing to obtain a proper fluid culture at that visit and failing to hospitalize the woman at the time.

 

During the woman’s expert plastic surgeon’s deposition, it was discovered that the last free nipple graft case he performed was about seven years before his deposition was taken, which was about four years prior to the time of the woman’s procedure. In total, the woman’s expert plastic surgeon had completed about two dozen free nipple graft breast reduction cases in his thirty-year career. The woman’s expert plastic surgeon testified that surgeons will at times treat post-surgical infections themselves, without the assistance of an infectious disease specialist.

 

Following the woman’s expert plastic surgeon’s deposition, near the trial date, the doctors and their practice group challenged the qualifications of the woman’s expert plastic surgeon, the only liability expert designated to testify at trial. The challenge argued that the expert had not performed the particular medical procedure at issue within four years of the alleged act of malpractice and his knowledge had become too stale to meet the threshold for admissibility.

 

The 219th District Court of Collin County, Texas, held a hearing. No evidence was admitted at the hearing. The trial court granted the doctors’ objections to the woman’s expert and dismissed the case.

 

The Court of Appeals of Texas, El Paso, affirmed. The court held that the woman failed to carry the burden to show the expert plastic surgeon was qualified when the doctors claimed the expert’s knowledge of the relevant medical standard of care was stale.

 

The woman failed to carry the burden to show the expert plastic surgeon was qualified when the defendant doctors claimed the expert’s knowledge of the relevant medical standard of care applicable to the free nipple graft procedure was stale. The court reasoned that three of the woman’s expert plastic surgeon’s five criticisms distinctly turned on the standard of care for the free nipple graft procedure. The specific criticisms include: (1) the informed consent for that procedure, (2) the amount of breast tissue taken during the procedure, and (3) the need for the doctor who performed the procedure to have obtained the assistance of a more qualified surgeon who knew that particular procedure. The doctors raised the issue of whether the woman’s expert plastic surgeon’s knowledge and experience with the specific procedure about which he opined were too far removed. Consequently, it was the woman’s burden to satisfy the trial court that the four-year time gap was irrelevant. The woman’s expert plastic surgeon did not testify at the hearing and no supplemental affidavit addressing the challenges were submitted to the trial court. The trial court had no way of knowing if the woman’s expert plastic surgeon had verified through medical literature that his last experience with the free nipple graft procedure was still relevant at the time of the woman’s procedure. The court concluded that the trial court did not abuse its discretion in striking the opinions specifically regarding the free nipple graft procedure based on the staleness of the woman’s expert plastic surgeon’s knowledge.

 

The trial court erred in excluding the woman’s expert plastic surgeon’s general opinions on post-procedure wound follow-up. The court reasoned that with regard to the expert plastic surgeon’s knowledge of post-procedure care, the staleness of the expert’s knowledge regarding the specific procedure were less relevant. The record established an overlap between the specialty of plastic surgery and specialty of infectious disease because the woman’s expert plastic surgeon testified that surgeons will at times treat post-surgical infections themselves, without the assistance of an infectious disease specialist. If the trial court excluded the woman’s expert plastic surgeon’s general opinions on post-procedure follow up because the expert had not performed this particular procedure in some time, it would have erred in doing so. The record showed the woman’s expert plastic surgeon regularly did surgical procedures, which require post-surgical wound checks.

 

The trial court’s erroneous exclusion of the woman’s expert plastic surgeon’s general opinions on post-procedure wound follow-up was harmless. The woman’s expert plastic surgeon’s report and deposition offered no specific criticism of the postsurgical care. To the extent that the expert plastic surgeon criticized specific actions, the testimony was limited to speculation.

 

The trial court erred in excluding the woman’s expert plastic surgeon’s opinion that the surgery should have been delayed until the woman’s underlying anemia was treated. The court noted that the procedure was elective and the only harm in delaying the procedure might have been additional neck, shoulder, and back pain. Like the opinion about post-procedure care, the qualifications to offer the opinion turned on the woman’s expert plastic surgeon’s general knowledge of prequalifying any patient for surgery, rather than his specific knowledge of the free nipple graft procedure. There was no indication in the record that the anemic condition of a patient having the free nipple graft procedure is any different from any patient having any other surgical procedure.

 

The trial court’s erroneous exclusion of the woman’s expert plastic surgeon’s opinion that the surgery should have been delayed until the woman’s underlying anemia was treated was harmless. The woman’s expert plastic surgeon did not testify that the anemia caused the ensuing infection. Rather, the woman’s expert plastic surgeon testified that the anemia was a contributing factor to the woman’s inability to respond to infection. The woman’s expert plastic surgeon never testified that in reasonable medical probability the woman suffered any distinct injury from this compromised condition. The court concluded that any error in excluding opinions that did not establish a viable claim was harmless.

 

The Court of Appeals of Texas, El Paso, affirmed the trial court’s grant of the doctors’ challenge to the woman’s expert and dismissal of the case.

 

See: Johnson v. Harris, 2017 WL 1416863 (Tex. App.-El Paso, April 19, 2017) (not designated for publication).

 

See also Medical Law Perspectives, October 2016 Report: Breast Surgery Revisited: Liability Risks of the Resurgery Epidemic

 

See also Medical Law Perspectives, June 2016 Report: How Risky is Going to the Hospital? The Dangers and Liabilities of Healthcare-Associated Infections

 

See also Medical Law Perspectives, October 2015 Report: Unclean, Unsterile, Unsafe: Risks of Injury from Unsterilized Medical Equipment

 

See also Medical Law Perspectives, September 2012 Report: Cosmetic Surgery Gone Wrong: High Hopes Meet Unexpected Results

 

 

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