Case details

Patient knew abscess formation was risk of surgery: defense





Result type

Not present

abscess, buttocks
On Feb. 21, 2015, plaintiff Griselda Clark, 31, an office manager for a bariatric surgeon, underwent a liposuction with fat transfer for gluteal augmentation. The procedure was performed by a plastic surgeon, Dr. Zachariah Barnes, at Beautologie Surgery Center, in Bakersfield. Clark previously underwent a bilateral breast augmentation at Beautologie Surgery Center in 2006. That procedure was carried out by a different plastic surgeon who was unavailable to consult with her when she returned in early February 2015. As a result, the staff at Beautologie Surgery Center highly recommended Barnes, and Clark agreed to consult with him about the gluteal augmentation procedure. During the surgery on Feb. 21, 2015, there were no intraoperative complications, and the total surgery time was approximately 2.5 hours. Clark did well, and she was discharged home that same day. Following the procedure, Clark developed an infection in the form of two abscesses on her left buttocks. Clark sued Barnes; Beautologie Surgery Center; and Barnes’ medical group, Beautologie Medical Group Inc. Clark alleged that the defendants were negligent in her treatment and that their negligence constituted medical malpractice. Plaintiff’s counsel contended that Barnes utilized an improper surgical technique during the subject surgery, such that it led to Clark developing the two abscesses on her left buttocks. The plaintiff’s plastic surgery expert opined that the pressures used by Barnes to suction fat from the patient, 23 to 25 inches of mercury, were too high and that lower pressures of 15 to 20 inches of mercury should have been used. The expert also opined that Barnes’ use of 23 to 25 inches of mercury pressure led to increased fat shearing, thereby increasing the number of nonviable fat cells. The expert opined that this, coupled with Barnes’ use of an open system during the fat storage and processing portion of the procedure, led to an increased risk of infection. The plaintiff’s expert added that closed systems were developed specifically to deal with the issue of post-surgical infection, and he opined that Barnes should have been aware of the need to use that system. Defense counsel contended that Clark was provided with patient education materials at Beautologie Surgery Center, which included numerous consent forms that provided information regarding the various risks of surgery, including the risk of infection. One of the forms specifically informs the patient that, although rare, there is a risk of abscess formation and hospitalization. Clark acknowledged at trial that she read each of the forms prior to signing them and, therefore, knew that infections, abscess formations and a hospitalizations were risks of the procedure. Defense counsel noted that Clark also acknowledged that she wanted to proceed with the surgery mindful of those risks. The defense’s plastic surgery expert contended that Barnes’ performance of the gluteal augmentation procedure met the standard of care. Defense counsel contended that there is no consensus within the plastic surgery community as to any optimal or specific pressures for suctioning fat during the procurement phase of the liposuction procedure, and argued that the pressures used by Barnes were within an accepted range. Counsel also contended that the plastic surgery community does not have a mandate that a closed system be used in autologous fat transfers, and argued that it is acceptable and within the standard of care to use an open system, as Barnes did. Defense counsel further argued that the risk of a post-operative infection, specifically in the form of an abscess formation, was an inherent risk of the procedure and that Clark was educated about such risks on a pre-operative basis., Clark claimed that she developed two abscesses on her left buttocks. She claimed she suffered severe pain from the infection and required 15 days of hospitalization, during which she received IV antibiotics. However, Clark acknowledged that there was an issue with insurance coverage with regards to sending her home with a PICC line and, thus, she was kept in the hospital to finish her course of IV antibiotics as opposed to being discharged home to finish her IV antibiotics. Once discharged, Clark required wound dressings for several weeks. However, when Clark told Barnes that home health care was going to charge her a good deal of money per visit to perform the dressing changes and that her family did not want to perform them for her either, Barnes agreed to do them for her once or twice daily, including on weekends. Clark claimed that although the two abscesses were fully healed by early May 2015, they left her with some residual scarring in addition to a feeling of firmness and pain in the left, lower buttocks. She alleged that the condition made it difficult for her to sit for long periods of time and also interfered with her sleep. Clark sought recovery of $65,067 in past medical costs, which included $5,466 for the out-of-pocket deductible she paid in connection with her hospitalization and $59,601 for the amount paid by her health insurance company for her hospitalization. She also sought recovery of an unspecified amount of non-economic damages for her past and future pain and suffering. Defense counsel disputed the amount of Clark’s alleged damages. Counsel contended that the $59,601 amount was paid by Clark’s health insurance and that Clark had no legal obligation to repay that amount to the insurance company.
Superior Court of Kern County, Kern, CA

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