On March 25, 2010, a Michigan jury found in a favor of the defendant, plastic surgeon Michael Freedland, MD, in a civil action for medical malpractice. The plaintiff alleged that Dr. Freedland negligently performed a breast mastectomy resulting in a mal-placement of her nipple so that it was visible above her brassiere or while wearing a bikini. She sued Dr. Freedland for over $500,000 in damages. The jury found no negligence on the part of the doctor.
Steven Lubell, Esq. of Lubell Rosen, LLC represented Dr. Freedland in the case. Theodore Empson, Esq. served as co-counsel. The case was heard before a jury in Oakland County, Michigan. The Honorable Daniel P. Obrien presided.
Evidence at trial established that the plaintiff first saw Dr. Freedland on February 14, 2005 and she consented to breast lift. As part of the consent, Dr. Freedland informed her that the risks of the procedure included asymmetry and poor results. Dr. Freedland promised however, that if poor results were to occur, revision surgeries would be scheduled. Dr. Freedland informed the patient that if revisions were necessary, she would only be billed for the anesthesia fees.
Dr. Freedland performed the breast lift on February 23, 2005. Following the procedure, the plaintiff developed significant inflammation and possibly an infection. As a result of the inflammation and/or infection, when the wounds healed, the areolas on the plaintiff’s breasts were asymmetrical. In August 2005, Dr. Freedland recommended a second surgery to remove some of the scarring and then a third surgery to make the areolas symmetrical.
Dr. Freedland performed the second surgery on February 22, 2006. The plaintiff returned for follow-up visits through May 2006 but was unhappy with her results and ultimately discontinued Dr. Freedland’s care. Dr. Freedland never got the opportunity to perform the third surgery as originally intended.
In January 2008, the plaintiff filed suit against Dr. Freedland alleging negligence for the 2/22/06 procedure. The plaintiff was precluded from alleging any negligence on the 2/23/05 procedure due to Michigan’s two-year statute of limitations. The plaintiff alleged that she was not told that a third procedure would be necessary and it was her understanding that the 2/22/06 procedure was meant to revise her asymmetry, which it clearly did not.
Mr. Lubell, on behalf of Dr. Freedland, showed the jury medical records from the doctor’s chart describing the 2/22/06 surgery as a “scar revision” procedure only. It was never intended to fix the asymmetry, Lubell argued. The plaintiff still claimed that she personally was not informed about the purpose of the 2006 procedure. Mr. Lubell then showed her invoices and credit card statements that she signed that labeled the procedure as a scar revision procedure.
The plaintiff countered by showing the jury pictures of the plaintiff’s asymmetrical breasts. The pictures clearly showed that the plaintiff’s areola was visible while wearing a brassiere. The plaintiff argued that it was negligent on Dr. Freedland’s part to not fix this error while doing the 2006 procedure. Dr. Freedland took the stand in his own defense. He pointed out that the picture was unfair. “Don’t you agree that her areola is showing in this picture?” he was asked by plaintiff’s counsel. “In that picture, I agree, because the bra doesn’t fit,” he replied.
The jury agreed. The plaintiff’s best piece of evidence was found to be just the result of a bra two times too large. While the defense conceded that the areola was asymmetrical, it could have easily been fixed had the plaintiff agreed to go for the third revision procedure, as originally scheduled. More importantly, the asymmetry was not caused by the 2006 procedure; it was caused by the 2005 procedure, which was barred by the statute of limitations.
The plaintiff could have gone for the third surgery at any time, with Dr. Freedland or with another plastic surgeon of her choice. Instead, the plaintiff intentionally did nothing. She sued Dr. Freedland for damages, living with asymmetry for four years, hoping to cash in on a payday.
Just prior to trial Dr. Freedland offered the plaintiff $10,000. She rejected the offer. In the end, the jury awarded her nothing, not even the cost of the third surgery, which Dr. Freedland had offered to do for free.
“The challenging part of defending this case,” Mr. Lubell commented, “was to convince the jury to disregard the results of the 2005 surgery, which by all appearances, were sub optimal.”
“I told the jury that you will not be hearing any evidence in this case that the 2005 surgery was negligent nor will the defense be offering any evidence in support of the 2005 surgery. Whether you believe the 2005 surgery was done correctly or poorly simply has no bearing on this case. Any claim of negligence for that procedure has been barred by the statute of limitations and you are therefore not permitted to consider it.”