Case details

Doc: Patient made defamatory comments after breast surgery

SUMMARY

$340000

Amount

Verdict-Defendant

Result type

Not present

Ruling
KEYWORDS
breast, breast tissue thinned, chest, disfigurement, scar
FACTS
On April 23, 2012, plaintiff Theodora Morris, an unemployed 44 year old, underwent a breast lift procedure performed by Dr. Jacob Haiavy, a cosmetic surgeon. Morris needed to have the internal pockets of her prior implants sewed so that they could be repositioned, as she had several prior breast surgeries before seeing Haiavy in November 2011 and was unhappy with the appearance of her implants. However, after undergoing the breast lift surgery in 2012, Morris developed scarring. As a result, during a follow up appointment on Aug. 29, 2012, Haiavy injected Morris with 5 Fluorouracil (5-FU). Although 5-FU can be used as treatment for skin cancer, it can also be used in an off-label manner to reduce scarring effectively. Morris continued to treat with Haiavy until April 30, 2013, and then she sought second opinions from plastic surgeons regarding reconstruction since 2014. Morris claimed that she was very unhappy with the appearance of her breasts following the breast lift procedure on April 23, 2012, and subsequently complained about her appearance to multiple physicians, and sought several opinions regarding improving her appearance. She ultimately underwent a major surgical repair that included the removal of the implants. Morris sued Haiavy and one of Haiavy’s practices, Inland Cosmetic Surgery. Morris alleged that Haiavy negligently performed the breast lift surgery and failed to obtain her informed consent regarding the 5-FU injection. She also alleged that Haiavy’s actions constituted medical battery and medical malpractice and that Inland Cosmetic Surgery was liable for Haiavy’s actions. Haiavy and his medical practices (Inland Cosmetic Surgery, Jacob Haiavy, M.D. Inc., and Surgical Arts of the Inland Empire) filed a separate action against Morris. They alleged that Morris, displeased with the results of her cosmetic breast procedure, posted a series of negative reviews about Haiavy and his practices on various internet Web sites, including Yelp and Ripoff Report. Prior to the commencement of the suit, Morris was asked her to remove the messages, as they were allegedly defamatory, but she refused. A defamation suit was subsequently filed after Morris filed her medical-malpractice suit against Haiavy. The cases were consolidated for discovery and trial. Morris claimed that she suffered near extrusion from Haiavy’s procedure in April 2012 and that her breast tissue thinned out due to Haiavy’s injection of 5-FU, which was done without her consent in August 2012. She also claimed that she was in excruciating pain for almost two years before she underwent major reconstructive surgery, which included having her implants removed. Morris’ counsel contended that Morris did not know that Haiavy used the 5-FU injection on her during the follow-up visit. Thus, counsel argued that Morris did not give consent to Haiavy to use 5-FU in the off-label manner, as Morris did not want to be injected with a chemotherapy medication that was not approved for treatment of scars by the U.S. Food and Drug Administration and as she was uncomfortable with the injection being used. Counsel also argued that the thinning of Morris’ breast tissue was due to the negligent use of 5-FU. The plaintiff’s board-certified plastic surgery expert opined that 5-FU should not have been used on Morris and that Morris’ scarring was not significant enough to warrant its use. The expert also opined that Morris’ scars should have been given more time to see how they appeared when they healed. Thus, the expert agreed that Morris did not give proper consent to using 5-FU and that there should have been a written consent, which was not done. Haiavy contended that the breast lift procedure was properly performed and that Morris verbally consented to the 5-FU injection. He also contended that it was appropriate to use 5-FU in an off-label manner to address Morris’ scarring. Haiavy’s counsel argued that Morris’ medical malpractice claims were barred by the statute of limitations, as Morris allegedly suspected her in August 2012 and should have filed her suit by August 2013, instead of after the statute of limitations expired, as Morris did on March 4, 2014. The defense’s board-certified plastic surgery expert opined that all medical care was appropriate. The expert also opined that it was proper to use 5-FU to address scarring and that it was common to use the medication in an off-label manner. The expert further opined that Morris’ thinning of breast tissue was due to Morris’ prior cosmetic surgeries on her breasts, which she initiated in 1993, and not due to Haiavy’s use of 5-FU. Regarding Haiavy’s defamation claims, Haiavy’s counsel contended that Morris began posting negative comments about Haiavy on the Internet and called Haiavy a “monster,” claiming that he “butchered” her. Haiavy also has a dental degree, and Morris allegedly accused him of being, “a dentist doing cosmetic surgery and doing a lot of damage to many women.” During the trial, Haiavy’s counsel highlighted 21 statements that were deemed defamatory in the reviews posted by Morris on yelp.com and ripoffreport.com. Haiavy’s media consultant and public relations expert testified about the power of the Internet and how Morris’ comments caused injury to Haiavy’s reputation. In response, Morris claimed that everything she said about Haiavy online was true., Morris claimed that she suffered for almost two years with the implants, which were almost extruding, before she could undergo a major repair and removal with her treating physician on March 5, 2015. She claimed that prior to the reconstruction and removal, she was in excruciating pain and that she was very unhappy with the appearance of her breasts. She alleged that she was embarrassed and dissatisfied with the implants. She claimed that she felt that she looked grotesque, impacting her relationships with men. Morris subsequently complained about her appearance to multiple physicians, and sought several opinions regarding improving her appearance. Morris’ counsel noted that Morris used to have very large implants, but that she now has no implants, scarring of the breast tissue, and unevenness, with concavity on the breasts. Counsel also contended that it is unclear whether Morris will be able to have new implants in the future. Morris’ treating physician, who performed the reconstruction in 2015, testified about Morris’ condition upon presentation and about the near extrusion of the implants. He also testified about possible future surgery to address Morris’ deformity. Morris’ husband, William Morris, originally presented a derivative claim, seeking recovery for his loss of consortium. However, he dismissed his case before trial. In regard to Haiavy’s defamation claims, Haiavy’s media consultant and public relations expert testified about the power of the Internet and how Morris’ comments caused injury to Haiavy’s reputation. The expert also testified about the alleged costs to repair Haiavy’s reputation, opining that the costs would be very expensive and vary based upon how involved the repair would be, such as counteracting negative postings with positive ones and posting positive advertisements. The expert further opined that the range of costs would vary from $180,000 to $500,000.
COURT
Superior Court of San Bernardino County, San Bernardino, CA

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