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Hamilton v. Salzman2/18/2005
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
Shawna R. Hamilton appeals the summary judgment granted Dr. Marc J. Salzman in a medical malpractice case for failure to name an expert witness for trial to support the claim for a breach of the standard of care. As to the first surgery, we do believe that the case requires a medical expert to opine that there was a breach of the standard of care. As to the second surgery, we opine that Dr. Fox's operative report creates a submissible case without an expert witness testifying at trial. Hence, we affirm in part, reverse in part, and remand for further proceedings.
Dr. Salzman performed breast augmentation surgeries twice on Hamilton. Unsatisfied with the results, she had a third surgery, by Dr. Martin Fox. Satisfied with the results of Dr. Fox's surgery, Hamilton sued Dr. Salzman for malpractice. After failing to name an expert witness for trial to support her claim that Dr. Salzman breached the standard of care, the circuit court granted Dr. Salzman summary judgment dismissing Hamilton's claim. On appeal, Hamilton contends the trial court erred in requiring her to have an expert.
Dr. Salzman's deposition was taken July 30, 2002. He described Hamilton and the surgical options available to her. Hamilton was described as a twenty-two year old mother of three who weighed 102 pounds and was 5 feet 2 inches tall. She worked as a topless dancer. Following childbirth, her breasts were stretched, thin-skinned, and sagging. She wanted her breasts lifted and enhanced. Dr. Salzman testified he believed that he explained three options. One option was large implants, which would correct the sagginess, but the trade-off would be that they would hang in a low position on the chest wall. Another option was to have her breasts lifted in a procedure known as a "mastopexy", which consists of cutting away some of the sagging skin tissue to push-up the remaining breasts, creating a more youthful appearance. The benefit would be negating the gravitational effect of adding the weight of the implant to a breast that is already sagging. The trade off with a mastopexy would be more scarring. The mastopexy also costs more than the first procedure. The third option was to put a "textured anatomic or Style 468 McGhan contoured shape implant under the gland" which would better correct the sagging without a mastopexy.
Dr. Salzman believed he also explained the different options for placement of the implants to Hamilton. The implants could be placed either sub-glandular or sub-muscular. The sub-glandular placement would fill in the breasts but they would still sag. A submuscular implant on Hamilton would need the lift or the mastopexy. Without the mastopexy, "you will have the look of a breast hanging off an implant,... ." " ou have a breast that's down by your belly button and an implant that's up by your collarbone." The submuscular would have disadvantages to a dancer, "when you're grabbing a pole or doing some of the things that dancers do, they will have a very funny outward migration of their breasts. They will flatten on the inside."
Hamilton's first surgery was performed on July 27, 1998, by Dr. Salzman at Jewish Hospital. He implanted the contoured shape Style 468 McGhan saline implants filled to 360 cc, subglandular. He explained that Hamilton decided prior to surgery to not have the mastopexy and the consent form only lists the bilateral subglandular augmentation. (Hamilton contends he never discussed the mastopexy until after the surgery.) On follow up office visits of July 30 and August 4, Hamilton seemed pleased with the results. Much of the sagging or hanging was corrected by the added volume to the breasts. By S
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