Fatima Nadrizny v. Ellen A. Mahoney, M.D. et al. (2010)

MEMORANDUM OF DECISION

This is a motion to dismiss a medical malpractice claim arising out of a bilateral breast augmentation and mastopexy.   The complaint alleges that the defendant plastic surgeon deviated from standard of care by failing to properly operate on the plaintiff, used improper technique, failed to diagnose the condition of the plaintiff and failed to provide proper postoperative care.   The complaint further alleges that the improper surgical procedure and follow-up resulted in necrosis of the nipple areolar complex with subcutaneous necrosis for both breasts.   The extensive debridement of the infections resulted in complete loss of the nipple areola complex and nipple of the right breast and removal of two thirds of the nipple areola complex and nipple of the left breast.   As a further result, the plaintiff suffered disfigurement, disfiguring scars as well as emotional and financial damages.

The defendants are challenging the sufficiency of the content of the good faith letter submitted with the complaint.   It was authored by a board-certified plastic surgeon.

The initial portion of the letter outlines a review of the medical records and notes that the plaintiff underwent bilateral augmentation and mastopexy on March 26, 2008.   Postoperatively, it was noted on March 31, 2008 that there was a “deepened mottling” the nipple areola complexes which progressed to necrosis.   On April 14, 2008 the plaintiff underwent debridement of the bilateral breast wounds.   Removal of the necrotic tissue resulted in the loss of the right nipple areola complex and partial loss of her left nipple areola complex.

An examination by another plastic surgeon on August 4, 2008 noted “significant breast asymmetry.”

The defendant surgeon attempted a repeat mastopexy on October 15, 2008 which resulted in a right breast implant deflation in January 2009.

The letter concluded as follows:

“ ‘There appears to deviations in the standard of care regarding the treatment rendered in this case and specifically surrounding the surgery performed on March 26, 2008.”   An error in surgical technique may have caused total nipple areola loss on the right and partial nipple areola loss on the left.   The photographs indicate complete loss of the right nipple areola complex.

“At this point in time, these conditions will not improve without further surgical intervention.   It is not possible to determine from the photographs whether or not these conditions can be improved even with the intervention.

“In summary, the areas of deviation from standard of care rendered to Ms. Nadrizny may include, in part, choice and execution, of the augmentation/mastopexy procedure performed on 3/26/06 and the postoperative care rendered thereafter.”

“The above is a preliminary report regarding the above case based on review of the materials that have been made available to me to date.   The above opinions are expressed to a reasonable degree of medical certainty.   These opinions may be modified, amended, and/or supplemented as additional information on medical records are obtained.”

The defendant has filed a motion to dismiss claiming that the opinion letter is not in compliance with the requirements C.G.S. Sec. 52-190a.   Specifically motion claims “The opinion letter states that Dr. Mahoney ‘may’ have committed an ‘error in the surgical technique’ in this case.   This is not a sufficient statement regarding the existence of negligence, nor does it provide a detailed basis regarding any alleged deviation in the standard of care.”

The defendant argues that this opinion does not identify the alleged act of negligence nor does it to definitively state that the action was a deviation of the standard of care;  that an opinion that “maybe” there was an “error in surgical technique” is not conclusive statement regarding the existence of negligence.

At the outset should be noted that the quoted statement in the motion is not contained in the opinion letter nor is there the use of the word “maybe.”   The author, however, referenced the word “may” in two sentences.   The word “may” has alternative meanings which, in this case, varied between the two sentences.

Blacks Law Dictionary, Ninth Edition defines the word “may” as follows:

“1. To be permitted to (the plaintiff may close). 2. To be a possibility (we may win on appeal).   Cf. Can. 3. Loosely, is required to;  shall;  must (if two or more defendants jointly indicted, any defendant who so requests may be tried separately)*in dozens of cases, courts have held may to be synonymous with “shall” or “must,” usually in an effort to effectuate legislative intent.”

Webster's New World Dictionary, Second College Edition is as follows:  1. Orig. Ability or power:  now generally replaced by “can.” 2. Possibility or likelihood (it may rain). 3. Permission or chance (you may go) see also “can.”

After stating that there appears to be a deviation in the standard of care regarding the treatment rendered in this case and specifically surrounding the surgery performed on March 26, 2008, the author indicates “an error in surgical technique may have caused total nipple areola loss ․” after stating there was a deviation the standard of care, the author does not state that the defendant may have committed an error in the surgical technique but the sentence, as written, indicates that the initial error in the surgical technique could possibly have been the proximate cause of the loss of the nipple areola several weeks later as a result of necrosis.

“Following Dias, then, it is clear that in order to fulfill the requirements of Sec. 52-190a(a) and to provide assurance that “there appears to be evidence of medical negligence” a claimant's written opinion from a similar health provider need not address the issue of causation.  Wilcox v. Schwartz, 119 Conn.App. 808 (2010).

The author actually does subsequently indicate that there was a deviation in the standard of care with respect to postoperative treatment, which would include treatment of the increasing necrosis.

The second sentence which included the word “may” is as follows:

“In summary, the areas of deviation from the standard of care rendered to Ms. Nadrizny may include, in part, choice and execution of the augmentation mastopexy procedure performed on 3/6/08 and the postoperative care rendered thereafter.”

In the context of this sentence, as written, it is obvious that a similar board-certified health provider has indicated that there appeared to be a deviation in the standard of care regarding the treatment rendered in this case, that his opinions are expressed to a reasonable degree of medical certainty and that you can include, with respect to the deviations of the standard of care, choice and execution of the augmentation/mastopexy procedure performed on 3/6/08 and the postoperative care rendered thereafter.

Another claim is that the allegations of negligence are not sufficiently detailed.   In Wilcox the sole claim of the deviation in the standard was care was that the defendant “failed to prevent injury to Christy Wilcox's biliary structures during laparoscopic (gallbladder) surgery.”   The listed deviations in the standard of care in the present case are as detailed, if not more, than the deviation in Wilcox.   With respect to the single claimed deviation of a failure to prevent injury in Wilcox, the court concluded:

“We believe the opinion is sufficiently detailed to satisfy the requirements of § 52-190a (a).   It suffices to notify the reader that a similar health care provider is of the opinion that the medical negligence consisted of a failure to protect Wilcox's bile ducts from injury during surgery.   The purpose of the statute is to discourage frivolous lawsuits against health care providers.   See LeConche v. Elligers, supra, 215 Conn. 710.   One of the mechanisms introduced in the amendments to the statute of 2005 was the written opinion requirement.   The ultimate purpose of this requirement is to demonstrate the existence of the claimant's good faith in bringing the complaint by having a witness, qualified under General Statutes § 52-184c, state in written form that there appears to be evidence of a breach of the applicable standard of care.   So long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint, as this opinion does, the basis of the opinion is detailed enough to satisfy the statute and the statute's purpose.   The person rendering this opinion is not required by § 52-190a (a) to be the expert witness on medical negligence to be used at the time of trial by the plaintiff.   Lack of such a statutory requirement that the good faith expert also be used at trial, evinces a legislative intent that the opinion's detail need not be as exhaustive as that of a trial expert on medical negligence disclosed under the provisions of Practice Book § 13-4(b)(1) and (2).

“Here, the plaintiffs' opinion fulfills the purpose of the requirement.   The complaint alleges only one specification of negligence pertaining to the actual performance of the surgery:  that Schwartz “failed to prevent injury to Wilcox's biliary structure during the laparoscopic choleystectomy.”   The defendants have been given sufficient notice that a similar health care provider is willing to state his opinion that the standard of care was breached during this surgical procedure.   The defendants will have the opportunity to gather more information during discovery of any medical expert the plaintiff's plan to use at trial.”  Wilcox v. Schwartz, supra, one 816, 817.

Accordingly, the motion to dismiss is denied.

GILARDI, J.T.R.

Gilardi, Richard P., J.T.R.