A 39-year-old mother of 2 was counting on her breast implants to be miracle workers, to not only return her breasts to their pre-pregnancy shape and firmness, but also to save her sagging marriage. When the implants did neither, instead giving her an embarrassing case of "double-bubble" breast deformity because they rode too high, she sued her plastic surgeon and walked away with $3.5 million. As you'll see, her case hinged on the 12-page informed consent she claims she was forced to hurriedly sign as she was wheeled into surgery.

A signed consent she never read
The woman sued the surgeon and his practice, alleging he failed to obtain informed consent for the procedure, that his failures constituted malpractice and that his practice was vicariously liable for his actions. She claimed that she wasn't informed that double-bubble deformity could develop and require additional surgeries. Although there was a signed document that included her signature, she contended that it was hurriedly presented to her on the day of the procedure and that she never actually read it.

The surgeon acknowledged that the original procedure intended to be a Level II mastopexy, but he needed to convert to a simpler Level I approach in order to eliminate an additional scar. He claimed that he discussed the possibility of converting to a different procedure during a pre-op office visit and that she was aware of it. He contended that as a part of his habit and custom, he provides each patient with an information packet and that part of the packet included a comprehensive informed consent — the exact consent form that she was presented with for signature on the day of the surgery. The plaintiff conceded that she didn't read the document despite being instructed to do so.

Busted union
The plaintiff's injuries consisted of a physical deformity that was "worsened" by the first revision and only minimally improved with the second. She also argued that the anxiety and emotional distress brought about by the deformity caused her to not bare her breasts to her husband, which led to the end of their 17-year-long marriage. She also included damages representing past and future pain and suffering. Her initial demand was for $800,000. The defense counter-offered $200,000, which she rejected. The case proceeded to trial.

The plaintiff testified that she told the surgeon about her low self-esteem and her marital problems. She said that part of the reason she sought surgery was to improve her confidence, which in turn could improve her marriage. She also discussed her desire to return to her pre-pregnancy body; she'd had 2 children and didn't plan on any more. She'd breast-fed and lost the original firmness of the breast tissue.

The surgeon testified that he always asks patients why they're undergoing surgery. If he determines that they're pursuing surgery for the wrong reasons, he declines the case and, in some cases, will refer patients for counseling. The woman's chart was devoid of any notes indicating that the patient had disclosed poor self-esteem or marital issues. He testified that the focus of the discussion was on fixing the problems from the pregnancies and breast-feeding, and in his medical judgment the patient was a good candidate for the procedure.

Improved informed consent
Interestingly, a pair of medical experts opined during the 7-day trial that simply removing the implants would resolve the double-bubble deformity. After deliberating for 9 hours, the jury of 4 men and 2 women returned a verdict (5:1) in favor of the plaintiff in the amount of $3.5 million.

This outcome is shocking, but one thing is apparent — the jury's emotions played a role in their verdict. The plaintiff presented very well. She was obviously found more credible than the defendant. Sympathy, if not disdain for the defense, seemingly influenced the verdict. When this occurs, the truth is oftentimes clouded, justice may not prevail and the verdict may be more of a punishment of the defendant than a compensatory award.

The defendant failed to persuade the jury that informed consent was obtained, which isn't all that surprising when the defense is limited to "he said, she said." This case illustrates perfectly why it's important to consider developing and implementing safe informed consent systems, which depart from the traditional unilateral consent forms and create a process centralized around a bilateral contract. The agreement, which is only part of the safe informed consent system, can unambiguously show a "meeting of the minds" and that the sympathetic patient has been told everything she needs to know about the procedure, including, but not limited to, the nature of the procedure, the persons involved, the roles of the care providers and the reasonably anticipated outcomes — including the risks or reasonably contemplated untoward outcomes that can result even with the best possible care.

Safe informed consent systems are valuable at trial, but in many instances can deter a patient, a plaintiff's lawyer and a proposed plaintiff's expert to be involved in such a claim.