Med mal: Patient dies after Brazilian Butt Lift procedure. Defense. Los Angeles County.
It becomes a battle of medical experts when patient dies after cosmetic surgery. Defendant doctor refuses consent to settlement.
- Case Name: Leon v. Plastic Surgeon, et al.
- Court and Case Number: Los Angeles Superior Court / BC573903
- Date of Verdict or Judgment: Tuesday, March 06, 2018
- Date Action was Filed: Saturday, February 28, 2015
- Type of Action: Medical Malpractice
- Judge or Arbitrator(s): Hon. Lisa Hart Cole
Plaintiffs: William Leon, et al.
Defendants: Roe Plastic Surgeon
- Type of Result: Jury Verdict
- Gross Verdict or Award: Defense verdict. Post-trial motions granted to set aside the verdict for new trial due to juror misconduct.
- Trial or Arbitration Time: 12 days.
- Jury Deliberation Time: 4 hours.
- Jury Polls: 10-2 defense
- Post Trial Motions & Post-Verdict Settlements: Unknown.
Attorney for the Plaintiff:
Gelfand & Gelfand by Gary Gelfand, Beverly Hills.
Law Offices of Michael E. Reznick, APC by Michael Reznick, Oak Park.
Attorney for the Defendant:
Law Offices Of Howard A. Kapp by Howard A. Kapp, Los Angeles.
Law Office of James Osborne by W. James Osborne , Los Angeles.
Plaintiff’s Medical Expert(s):
Malcolm Lesavoy, M.D., plastic surgery, Beverly Hills.
Michael Fishbein, M.D.,chief of pathology at UCLA.
Ajay Panchel, M.D., assistant medical examiner, (unretained).
Sridhar Natarajan, M.D., forensic pathologist and chief coroner of Lubbock County, Texas.
Sean Younai, M.D., plastic surgery, Encino.
Plaintiff's Technical Expert(s):
Tamorah Hunt, Ph.D., economics, Santa Ana.
Defendant's Technical Expert(s):
Facts and Background
Facts and Background:
Decedent was a 35-year-old, unmarried mother of two daughters (aged 15 and 3) and a long-time social worker employed by the County of Los Angeles, earning approximately $85,000 annually. Decedent had previous plastic surgery on multiple occasions when in June 2014 she presented to George Boris, M.D., a Culver City cosmetic surgeon, for the purposes of having an enhancement of her buttocks, commonly known as a Brazilian Butt Lift. Dr. Boris was the sole owner and operator of a credentialed surgery center in Culver City. A Brazilian Butt Lift is accomplished by harvesting fat in liposuction which is immediately thereafter transferred to the buttocks in order to enhance the contour and size of the buttocks. This is an increasingly popular cosmetic surgery associated with the Kardashians. This procedure has generally been considered to be very safe.
On the date of the surgery, August 4, 2014, the decedent's case was transferred by Dr. Boris to defendant surgeon, a board-certified plastic surgeon who has done many of these Brazilian Butt Lifts. Defendant surgeon had routinely done procedures at the Boris surgery center and had an ongoing financial relationship with Dr. Boris (that is the subject of another litigation). Defendant surgeon met with the decedent prior to the procedure and informed her she did not have sufficient abdominal fat to do an abdominal liposuction as part of the operation.
He thus changed the plan to harvesting the fat from her upper arms, inner thighs (medial thighs) and then flipping the patient and harvesting additional fat from her lower back and flanks and then transferring all of the fat to her buttocks. This operation was conducted with the assistance of an anesthesiologist. The operation proceeded without incident. Approximately 30 minutes after the operation had concluded, and prior to the extubation of the patient, plaintiff's still-monitored vital signs showed a sudden crash of her oxygen and carbon dioxide levels, together with a very significant drop in her heart rate (bradycardia).
The anesthesiologist attempted to resuscitate the patient but eventually 911 was called and the patient transferred by ambulance to Southern California Hospital of Culver City (i.e., Brotman) where she was provided with CPR for over two hours and provided with the clotbuster tPA because of a suspicion of the pulmonary embolism. There was also suspicion of pulmonary fat emboli, which is a very rare complication of Brazilian Butt Lifts, that is untreatable and usually fatal.
The decedent was pronounced dead approximately four hours after the operation had concluded. An autopsy was performed on the patient by Ajay Panchal, M.D., a board-certified forensic pathologist. Upon the additional abdominal incision, Dr. Panchal encountered a large quantity of blood in the abdomen which he eventually concluded was 2200 mL (this amount would be disputed). Dr. Panchal concluded that this was the cause of death and began searching for the vascular injury which he assumed had caused this bleed. He examined all of the pelvic organs and found no damage to any of them. In conducting his search for the presumably injured vessel, Dr. Panchal, by necessity, entered into the retroperitoneal space. This is very deep in the body and on the anterior portion of the sacrum. There he claims to have found a disruption which he described as a "traumatic wound to the right internal iliac artery," which he concluded was the immediate cause of the death. Dr. Panchal took 38 photographs during the autopsy, including external pre-autopsy photographs, depictions of the unclotted blood, and a number of photographs depicting the alleged site of the right internal iliac artery.
That plaintiffs' 35-year-old mother, decedent, died as a result of a "traumatic wound to the right internal iliac artery" as reported on the autopsy prepared by Dr. Panchal, deputy coroner, which caused a reported blood loss, found in the decedent's abdomen during the autopsy of 2200 mL.
The plaintiffs' contention was that defendant surgeon had to have been negligent in penetrating to the level of the internal iliac artery, which was far deeper than the fat layer appropriate to the abdominal liposuction (which in fact had never been performed). Plaintiffs produced Dr. Lesavoy who testified at his deposition that this injury must have occurred during the "abdominal liposuction." Dr. Lesavoy acknowledged that this was a very large and critical artery that would have led to a large bleed. Dr. Lesavoy further testified that the surgical/anesthesia records were accurate and showed that there was no change in the vital signs until 75 minutes after the alleged injury. Dr. Lesavoy testified that the only explanation for the 75-minute delay in the change of the anesthesiologist-monitored vital signs was the development of a tamponade (i.e., that the effect on the decedent's pelvic organs had been sufficient to stop any bleeding from the large vessel).
By the time of trial, Dr. Lesavoy and the plaintiffs' counsel were aware that defendant surgeon had not done any abdominal liposuction and that it had been explicitly deleted from the consent forms and the pre-operative records. Instead, Dr. Lesavoy asserted that defendant surgeon must have liposuctioned the abdominal area from the insertions on the right and left sides of the medial thighs (which had been placed there specifically to harvest fat from the thighs). Dr. Lesavoy acknowledged that there was no actual evidence, other than the asserted injury to the right internal iliac artery, that defendant surgeon had made such a gross mistake, but Dr. Lesavoy testified that the nature of the injury was conclusive evidence that defendant surgeon had committed malpractice and that malpractice was the legal cause of the death.
During his testimony under Evidence Code section 776, defendant surgeon had presented an exemplar cannula as was used by him during the subject operation. This was a three- or four-mm, blunt-end cannula of approximately nine inches in length, designed specifically for the purposes of performing liposuction in the fat layer immediately under the skin. Dr. Lesavoy presented an alternative cannula that was approximately 16 inches long, with a larger diameter, and a sharp end. The Lesavoy cannula was admitted into evidence.
Also, during plaintiffs' 776 examination, plaintiffs' counsel elected to ask defendant surgeon a series of expert questions even though defendant surgeon had refused to answer such questions at the time of his deposition and had never been designated by the defense as an expert. In essence, defendant surgeon testified that he could not have caused the injuries claimed in the autopsy and that the most likely cause of death were pulmonary fat emboli, which is known in the community as being associated with this operation. Defendant surgeon further testified that he had disclosed this risk in his written consent form. (There was no claim as to informed consent.)
Plaintiffs also called Dr. Panchal, the county medical examiner. Dr. Panchal insisted that the cause of death was this injury to the right internal iliac artery and that this was so obvious that he did not need to examine the lungs for possible suspected pulmonary fat emboli (although this cause was mentioned in the coroner's investigator's report regarding the emergency room intervention) or to verify that the blood in the abdomen was indeed blood and not a combination of waters introduced during the procedures and small amounts of blood which would normally be associated with that procedure. Dr. Panchal acknowledged that the cost of doing these additional verifying tests would have been nominal.
Plaintiffs also called Michael Fishbein, M.D., the long-time head of the Department of Pathology at UCLA and the director of autopsy services at that facility. Dr. Fishbein testified that he had reviewed the autopsy photographs and had seen the actual suspect tissue which had been preserved but that he was unable to confirm the identity of the artery involved.
The decedent died as a result of pulmonary fat emboli, which is known to be associated with Brazilian Butt Lifts and was subsequently reported as occurring in approximately 1 in 1500 cases.
The decedent did not die of an injury to the internal iliac artery or any other vessel; in fact, the alleged injury was anatomically impossible in this superficial plastic surgery using a blunt cannula that could not have physically penetrated through the multiple organs and tissue between the skin (or the target fat layer) and the site of the alleged injury. (The internal iliac artery is located very deep in the retroperitoneum, essentially on the front of the sacrum.)
Moreover, an injury of this sort would necessarily have left a pathway of destruction as any instrument would have necessarily passed through the pelvic organs; there were no findings of any such injuries. As to the longer cannula introduced by plaintiff: Dr. Lesavoy indicated that he had no evidence that defendant surgeon had used this type of cannula and Dr. Lesavoy was unaware of anyone using this type of cannula for liposuctions.
The autopsy was wrong and the reported injury to the right internal iliac artery was either caused by the resuscitative efforts in the emergency department or was caused by the medical examiner himself. That the blood was likely a mixture of random blood inherent in the procedures and the large amount of water/fluids used during the operation.
The anesthesia record showed that, after the operation and as the patient was under the sole care of the anesthesiologist, the patient's oxygen and carbon dioxide levels suddenly crashed while the heart rate and blood pressure remained stable for an uncertain amount of time. This was definitive evidence, according to the defense, that the patient was suffering from an obstruction of the lungs, which had to be either a pulmonary embolus (which is not peculiarly related to this operation) or pulmonary fat emboli. Defense contended that the county coroner elected not to examine the lungs for pulmonary fat emboli (which are tiny and need to be microscopically observed) because of a "rush to judgment."
The defense called Dr. Natarajan, the long-time coroner and chief medical examiner of Lubbock, Texas, the home of Texas Tech University (and its medical school). Dr. Natarajan testified that the autopsy performed by Dr. Panchal was incomplete and incompetently done and that the available evidence showed that the patient died of something other than the purported wound to the internal iliac artery. Dr. Natarajan testified that the failure to obtain a microscopic evaluation of the lungs rendered the autopsy incomplete and unreliable since Dr. Panchal had refused to conduct very simple tests that would have either ruled out or shown conclusively that the cause of death was pulmonary fat emboli, which has long been known to be associated with Brazilian Butt Lifts. (A 2017 study, based on a survey of a subgroup of plastic surgeons, showed that approximately 1 of 3000 patients who undergo this procedure will sustain this type of lung obstructions, with approximately half of those dying immediately. (The plaintiffs asserted that the number was more like 1 of 6000.) There was no dispute that the plastic surgery community is continuing to do these procedures even as they try to reduce these numbers further. It was further undisputed that the study showed that seven percent of the responding board-certified plastic surgeons had had a patient die after a Brazilian Butt Lift due to this cause.)
The defense also re-called defendant surgeon, who freely testified as an expert witness. Defendant surgeon demonstrated the procedures performed in the surgery and explained that the vascular injury attributed to him was impossible. Defendant, like all board-certified plastic surgeons, had done several years of training in general and trauma surgery, and was therefore familiar with this area of the pelvis. Defendant surgeon further testified that the anesthesia record conclusively showed that the first manifestation of problems were associated with oxygen and carbon dioxide, both of which crashed precipitously after the operation. This, he explained, could only be explained by the existence of either a pulmonary blood embolus or pulmonary fat emboli. He further testified that the ineffectiveness of the tPA given in the emergency room in the off-chance that this was a fat embolism showed that it was not a blood embolus, but pulmonary fat emboli (for which tPA does nothing).
Furthermore, defendant surgeon testified that the emergency room physician's initial finding that the decedent's abdomen was soft to palpation on admission to the emergency room showed that she did not have any blood in her abdomen at that time. This was further confirmed by the fact that all of the ER care was directed to a pulmonary etiology and 100% inconsistent with even a hint of suspicion of a bleed or abdominal trauma.
The defense also called Dr. Younai, an Encino-based plastic surgeon, who essentially testified to the same facts as defendant surgeon. They both testified that the assertion that defendant surgeon had been anywhere near the right internal iliac artery was a physical and anatomic impossibility. This was based on multiple facts, none of which were disputed by the plaintiffs. First, defendant surgeon was using a small blunt cannula that would not have allowed him to penetrate through the multiple organs, some of which are quite strong, even applying very substantial force. Secondly, there should have been significant evidence of damage to multiple organs as defendant surgeon would have had to press his nine-inch-long cannula approximately seven inches and do so without a sharp edge. Third, of course, the evidence, according to the defense, was that the change in her vital signs was entirely consistent with a pulmonary obstruction and inconsistent with a bleed.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Death of the 35-year-old mother of 15-year-old and 3-year-old daughters.
- Special Damages Claimed - Past Medical: None; patient died.
- Special Damages Claimed - Future Medical: None; patient died.
- Special Damages Claimed - Past Lost Earnings: Loss of earnings claim approximately $2,000,000.
The plaintiffs' demand for settlement was the $1 million insurance policy limits.
The defense never offered anything due to lack of consent. Plaintiff originally sued the anesthesiologist (dismissed on summary judgment), George Boris, M.D. (the owner of the surgery center and alleged employer of defendant surgeon) and also sued defendant surgeon for misrepresenting his credentials as a "Harvard trained physician."
As a result of the non-malpractice claims, defendant surgeon was entitled to have Cumis counsel and he elected to hire Mr. Kapp. After those intentional tort claims were dismissed on summary judgment (the court having found that the assertion that he was a "Harvard trained physician" was true since he obtained fellowship training in aesthetic plastic surgery at Harvard), defendant surgeon elected to have Mr. Kapp continue as the sole attorney.
After losing a motion for summary judgment on the grounds of lack of apparent agency, Dr. Boris settled with the plaintiffs in the amount of $750,000. Defendant surgeon was invited to the mediation but refused to attend on the grounds of lack of consent since defendant surgeon believed that the described cause of death was anatomically impossible. Wm. James Osborne was co-counsel for the defendants.
Attorneys for the defense, Kapp and Osborne, are both long-time plaintiff attorneys.