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Malpractice Against Cosmetic Surgeon Not Barred for Coagulation/Emboli Injury


A woman began treatment under a doctor’s care for hypercoagulopathy. Subsequently, she decided to have cosmetic surgery, including breast augmentation and liposuction. When she was no longer receiving anticoagulant therapy, a surgeon agreed to perform the cosmetic surgery. Subsequent to the surgery, the woman developed pulmonary emboli in the lungs and deep vein thrombosis in the legs, was hospitalized for a period of eight days—at least part of that time in intensive care—and allegedly will be required to take anticoagulant medication for the rest of her life.

 

The woman sued the surgeon and his practice group and the doctor who treated her hypercoagulopathy. The doctor moved for summary judgment dismissing the complaint insofar as asserted against him. He asserted that he advised the surgeon that the risk of blood clotting could be minimized by insertion of an inferior vena cava filter (IVC filter) prior to the surgery, and that the woman should take Lovenox for several weeks after the surgery. However, the IVC filter was not inserted, and the surgeon did not give the woman a prescription for Lovenox. After the woman was discharged from the hospital, the doctor called in a prescription for Lovenox to her pharmacy, and left messages on her voicemail after attempts to reach her directly were unsuccessful.

 

The Nassau County Supreme Court granted the doctor’s motion. The court found that the doctor’s recommendations to the surgeon with respect to insertion of the IVC filter prior to surgery, and prescribing anticoagulant medication subsequent to surgery, did not deviate from accepted standards of care, and the doctor was not responsible for discharging the woman from the hospital without a prescription for Lovenox. With respect to proximate cause, the trial court noted that an expert affidavit stating that “the absence of the IVC filter was not the proximate cause of the plaintiff’s claimed injury of having to remain on life-long anticoagulant therapy” was not rebutted.

 

The surgeon and his practice group moved to dismiss the complaint insofar as asserted against them based upon the law of the case doctrine. They noted that, in granting summary judgment to the doctor, the trial court found that failure to insert the IVC filter could not have prevented the woman’s alleged need for life-long anticoagulation medication, because the IVC filter would only prevent emboli from traveling from the legs to the lungs, and would have no effect on the development of recurrent deep vein thrombosis in the legs and elsewhere. Although the trial court denied the motion, the court stated “as set forth in [the complaint], the claim asserted against the [surgeon and his practice group] is circumscribed to that of failing to order anticoagulant therapy upon the woman’s immediate discharge from the hospital.” The woman moved for leave to reargue, and, in effect, for resettlement of the order on the ground that the trial court overlooked the woman’s claim that had the IVC filter been inserted prior to the surgery, it would have captured the embolism, thereby preventing the embolism from traveling to the pulmonary artery, and there would not have been a need for her eight-day hospitalization. The trial court granted reargument, and “modified” the previous order to reflect the fact that in addition to the claim that the surgeon departed from good and accepted medical practice in failing to order anticoagulant therapy upon the woman’s discharge from the hospital, the woman also claimed that the surgeon departed from good and accepted practice in performing surgery with the knowledge that the IVC filter had not been inserted pre-operatively.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed. The court held that the law of the case doctrine did not bar the woman’s malpractice claim against the surgeon.

 

The law of the case doctrine did not bar the woman’s malpractice claim against the surgeon. The law of the case doctrine, which bars relitigation of issues decided at an earlier stage in the litigation, applies only to legal determinations that were necessarily resolved on the merits in a prior decision. The determination in the trial court’s order entered in the case against the doctor did not constitute the law of the case with respect to whether the alleged failure of the surgeon to insert an IVC filter prior to the woman’s surgery proximately caused any injury to the her. The trial court’s prior determination that the doctor’s advice did not deviate from accepted standard of care did not absolve the surgeon of liability, as the surgeon allegedly did not follow the doctor’s advice.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court’s grant of the woman’s motion for leave to reargue her opposition to the prior motion to dismiss and denied the surgeon’s motion to dismiss.

 

See: Saccoccia v. Greenberg, 2016 WL 618625 (N.Y.A.D. 2 Dept., February 17, 2016) (not designated for publication).

 

See also Medical Law Perspectives, December 2013 Report: Thicker Than Water: Liability When Blood Clots Cause Injury or Death

 

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

 

 

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