Lewis Johs Avallone Aviles, LLP (New York, NY) attorney Carl A. Formicola obtained a defendants' verdict in favor of their client, a surgeon, in Kings County, Supreme Court for a medical malpractice case.
On February 10, 2005, Lewis Johs’ client, a surgeon, performed a bi-lateral breast implant surgery on the plaintiff. Ten days later, the plaintiff developed a significant hematoma of the left breast requiring surgery. At the hospital, plaintiff signed a consent form for surgery on the left breast only. At trial, she testified that there were no problems with her right breast.
During surgery, Lewis Johs’ client became concerned about a possible hematoma in the right breast. After surgery on the left breast, the surgeon drained a small amount of liquefied blood from the right breast, but did not send it to pathology. All of the post-operative documentation referenced only a hematoma of the left breast. The doctor testified that he filled out the documentation pre-operatively to save time.
The jury was presented with two questions on liability: (1) whether Lewis Johs’ client performed unnecessary surgery in doing the right breast and (2) whether the doctor obtained an informed consent for that surgery. Mr. Formicola argued that the consent signed contained a provision for other procedures in the event of unforeseen circumstances and that the plaintiff, in light of her prior surgeries and the discussion of the risks of the left breast hematoma surgery, was aware of the risks and would have also consented to the right breast procedure if she had been told about it.
The jury found the doctor did not perform unnecessary surgery and further found that he had obtained an informed consent.