December 1, 2010

In a decision that sends a message to victims of medical malpractice and physicians alike, a panel of judges has upheld a $20 million verdict against a plastic surgeon. While the case was not in Oregon, the ruling of the appellate court has national implications.

The panel of judges heard the defendant’s and plaintiff’s arguments in the Pennsylvania Superior Court. A jury in the Philadelphia Court of Common Pleas had handed down the decision in May 2008. The plastic surgeon and his medical practice were to pay the family of the 18-year-old victim $17 million in damages, $15 million of which were marked as punitive damages. An additional $3.5 million in damages was apportioned between the surgeon (75%) and the nurse anesthetist (and his employer).

In earlier pleadings, the defendant challenged the award on a number of grounds. Evidentiary issues included the admission of documents the defendant claimed were covered under the Peer Review Protection Act and the admission of evidence that the surgical facility was not licensed. Of the PRPA claim, the court found that the documents in question were not peer reviewed. With regard to the licensure of the facility, the court stated that, while the surgeon’s facility was not required to be licensed, the issue was actually one of disclosure: If the facility was not licensed by the Pennsylvania Department of Health, the surgeon should have informed the patient so that she could decide if she still wanted the procedure done there.

With the size of the punitive damages award, it is no surprise that the surgeon and his clinic had also challenged the appropriateness of punitive damages in this case. The court stated that punitive damages are appropriate when the defendant has engaged in outrageous conduct and may be imposed as a deterrent to similar acts by the defendant or others. Whether punitive damages should be awarded is up to the trier of fact — in this case, the jury. The jury was convinced by a preponderance of the evidence that the surgeon had consciously disregarded the risk to the patient when he performed “improper surgical technique,” among other things.

There were other points of contention, but those are perhaps for another post, another day.

The decision of the appellate court is one of the final steps in recovery from the 18-year-old’s death in 2001. She went to the surgeon for liposuction and developed complications almost immediately. Though the surgeon and his nurse informed the girl’s mother that she was having difficulty, they apparently ignored the mother’s pleas to call an ambulance. Hours later, the girl was taken to the hospital, where she died of a fat embolism.


Mainline.com “Ruling Upheld in Botched Liposuction” 11/18/10

Fledderman v. Glunk 2009 WL 6483075 (Pa.Com.Pl.) via Westlaw

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