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Failure to properly perform surgery


On January 10, a 23-year-old woman saw a plastic surgeon for breast augmentation consultation. The physician noted significant asymmetry of this patient’s breasts and discussed the risks and benefits of the procedure with the patient. On February 15, the patient underwent endoscopic breast augmentation.

Physician action

Because this patient had significant breast asymmetry, the physician filled the right breast implant to 325 cc and the left breast implant to 425 cc. The patient was seen frequently over the next few months, and the physician noted she still had asymmetry of the breasts.

Approximately six months later, the plastic surgeon adjusted the volume of the right breast, adding 105 cc to the implant. The patient seemed happy with the results. Over time, she developed some stretch marks. She did not return to the plastic surgeon but went to another plastic surgeon for a consultation.


A lawsuit was filed against the plastic surgeon. The allegations included failure to properly perform surgery resulting in a disfiguring injury and failure to meet the standard of care.

Legal implications

The plaintiff’s plastic surgery expert testified that the defendant breached the standard of care by placing the implants too far laterally. He also said the plastic surgeon overfilled the implant and should have gone to the next size implant.

The plastic surgeon who testified for the defense stated that the defendant documented the patient’s history of asymmetry preoperatively. The patient was also counseled on the risk of continued asymmetry. This expert felt it was reasonable to go back and adjust the volume on the right side, and even if the implants were overfilled, this did not contribute to the asymmetry. Further, residual asymmetry and striae are possible outcomes of augmentation surgery.


This case was taken to trial and the jury reached a verdict in favor of the defendant.

Risk management considerations

Experts who reviewed this case praised the defendant’s thorough documentation. The notes from both the preoperative consultation and consent discussion were described as very good and informative.

Many patients who seek elective cosmetic procedures expect perfect outcomes. Though not an issue in this case, documenting the informed consent discussion including the risk, benefits, and alternatives in the medical record can provide increased defensibility should an adverse outcome occur. The physician’s good documentation of informed consent and possible outcomes — including the chance of continued breast asymmetry — helped him to successfully defend his care.

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