In a new unreported Maryland Appellate Court opinion, the court reversed the trial court’s reduction of damages in a liposuction medical malpractice lawsuit.
Facts of Blackston v. Doctor’s Weight Loss Centers
This is a somewhat rare case where malpractice occurs in one state and the doctor is sued in another The claim involves a patient who underwent a liposuction procedure in Alexandria, Virginia, and subsequently suffered permanent physical and emotional injuries.
The procedure was performed by the defendant, a Virginia-licensed cosmetic surgeon, at his office. It seems like so many of the “plastic surgery in the office” procedures go sideways and end up in malpractice lawsuits.
“Minimally Invasive” Procedure
The patient initially visited the office for a consultation and watched a video explaining the liposuction procedure. During a subsequent pre-operative evaluation, the patient and the surgeon discussed the risks of the procedure, and the patient signed a consent form. The surgeon persuaded the patient to opt for an alternative liposuction method, which he referred to as “Smart Lipo,” described as minimally invasive.
The surgery took place and lasted approximately six and a half hours, inclusive of three breaks. Does this sound “minimally invasive” to you? Anyway, despite the patient expressing extreme pain during the procedure, the surgeon completed the operation, commenting that screaming was abnormal for this type of procedure which he apparently did not take as a cause for concern. The patient was administered an oral antibiotic before the surgery and analgesic pills for pain relief.
Post Surgery Complications
Following the surgery, the patient reported dizziness and extreme pain, to which the surgeon responded by injecting a local anesthetic. Over the next several days, the patient’s condition significantly worsened. She experienced severe pain, fever, nausea, and pus oozing from the incision sites. Despite these alarming symptoms, the surgeon reportedly denied any signs of infection and advised the patient to continue taking the oral antibiotic prescribed before the surgery.
When the patient’s condition did not improve, her mother contacted the surgeon to refill the antibiotic prescription, arguing that the patient needed more medication as the incision sites were still open and to prevent further infection. The surgeon denied any infection at that point and would have changed the approach if he had known.
During a later visit to a group weight loss session, the patient showed the surgeon her wounds and reported her symptoms, but he allegedly dismissed her and advised her to make an appointment on a later date. Following this visit, the patient collapsed and was admitted to a hospital, where she was diagnosed with a severe bacterial infection, methicillin-resistant Staphylococcus aureus (MRSA). She underwent several surgeries and treatments for the infection, and the hospital made attempts to contact the surgeon, but there was no response.
In light of these events, the patient filed a complaint against the surgeon, his associated weight loss centers, and the wellness foundation in the Circuit Court for Prince George’s County. Why not Virginia? PG is a better jurisdiction for plaintiff and she obviously had jurisdiction of the defendant in Prince George’s County. The plastic surgery malpractice lawsuit alleged that the surgeon had breached the standard of care in multiple ways before, during, and after the procedure, and that he had failed to obtain proper informed consent.
After a five-day trial, the jury found in favor of the patient, awarding her a total of $2,300,900 in damages, including non-economic damages of $2,000,000, economic damages of $60,000, and medical expenses in the amount of $240,900. Following the verdict, the defendants filed several post-trial motions, including a motion for statutory remittitur. The court partly granted this motion, reducing the total award to $1,055,900, plus interest and costs.
Why? The core of the dispute lies in the interpretation of the applicable state law governing the damages recoverable. It makes a big difference. If Maryland law is applied, Md. Code, Cts. & Jud. Pro. § 3-2A-09(b) caps these damages in this 2015 case at $755,000. Maryland malpractice cases are also subject to a collateral source rule exception, CJ § 3-2A-09(d)(1), that restricts past medical expenses to the actual amount paid, which defendants argue was $68,224.98. But if Virginia law is applied, Virginia Code § 8.01-581.15 sets a very different limit on the total amount recoverable: $2,150,000. In this scenario, past medical expenses would not be restricted by CJ § 3-2A-09(d)(1).
The defendants argue that the infection’s manifestation occurred in Maryland, and thus Maryland law should apply, capping the damages at $755,000. They also argued that the plaintiff should recover only the amounts she paid for the medical bills, which they asserted was $68,224.98.
The plaintiff countered, stating that the issue of Virginia law applying to the damages didn’t arise until there was a verdict, and she had provided notice in the pre-trial statement. She also stated that the cases relied upon by the doctor were limited to occupational diseases and not relevant in this situation. Her lawyers stressed that the negligence occurred in Virginia, thus, Virginia law, including its damages cap, should apply.
The trial court agreed to reduce the non-economic damages award from $2,000,000 to $755,000 under Maryland law. However, the court left in place the jury’s award of $240,900 for past medical expenses. Thus, the total award was reduced to $1,055,900.
Maryland Appellate Court Opinion
The court reversed the trial court’s finding that Virginia law should control how damages are awarded. You do not get the impression that the court thought it was a close call.
Under Maryland law, it’s established that a statutory cap on non-economic damages is a matter of substantive tort law, not procedural law. Even though no specific Maryland case addressing the issue has been identified, the court readily determined that a statutory cap on past medical expenses is also substantive tort law.
A cause of action for medical negligence occurs where the injury first emerges, not where the final damage is suffered. In this case, the malpractice victim experienced a legally recognizable injury on the day of the procedure. The infection originated during the Virginia procedure so the evidence indicates that the injury occurred during the Virginia surgery. This means Virginia law should dictate the recoverable damages.
Final Issue: Notice of Intention to Rely Upon Virginia Law
The doctors also argued that the plaintiff’s malpractice lawyers made a mistake in failing to provide reasonable notice of her intention to rely on Virginia law. They claim the late notice brought an unfair surprise
But the court found that she notified the court in her pre-trial statement about her intent to use Virginia law concerning any damage limitations. She argues that this notice was reasonable, and appellees didn’t express any concerns about it then.
Maryland law (CJ § 10-504) states that if a party intends to rely on another jurisdiction’s law, that party should provide “reasonable notice… to the adverse parties either in the pleadings or by other written notice.” As explained by the Supreme Court of Maryland, if a party wishes to use a foreign law, notice should be given in the trial court so that the opposing party has enough time to prepare their arguments on the foreign law.
In this case, the plaintiff’s medical malpractice lawyers gave enough notice of her intention to rely on Virginia law about damages in the pre-trial statement, which was filed more than a month before the trial started. The court found that this gave the doctor adequate time to object and challenge the reliance on foreign law or to change their trial strategies.
Liposuction Malpractice Verdicts & Settlements
Below are summaries of verdicts and reported settlements in other liposuction malpractice cases.
$181,000 Verdict (Louisiana 2022): reportedly suffered septic shock, systemic inflammatory response syndrome (SIRS), multiple organ failure, lactic acidosis and hypotension after an allegedly contaminated saline solution was used during a liposuction procedure to his chin, performed by the defendant plastic surgeon.
$5000,000 Settlement (California 2021): The plaintiff, 30-year-old-male, suffered 3 separate bowel perforations during abdominal liposuction procedure and filed a medical malpractice lawsuit against the plastic surgeon for negligence. The case eventually settled.
$1,300,000 Settlement (New York 2019): a 34-year-old female cosmetic surgery patient, died as she fell into respiratory distress due to blot clots traveling into her lungs seven days after she underwent abdominoplasty and tummy tuck/liposuction performed by the defendant plastic surgeon and his practice.