August 3, 2019

Breast Implants and Medical Malpractice: Negligence and Case Law

While Hollywood tends to minimize the experience of getting breast implants, it is still major surgery and carries dangerous risks. Women and men who undergo breast augmentation may do so for cosmetic or health reasons, and they put their bodies and trust into their surgeon’s hands. If you’ve experienced a botched breast augmentation surgery or complications arising from negligence or problematic implants, experienced hospital negligence lawyers at Cochran, Kroll & Associates, P.C. can help you seek compensation for your pain, suffering, and economic damages.

Breast augmentation should be a positive experience for those who elect to have it done. While it does carry risks, in a responsible surgical environment with a reputable surgeon, these risks are minimized, and some are even eliminated.

About breast augmentation surgery

Breast augmentation is the most common form of cosmetic surgery in the United States. According to data released by the U.S. Census Bureau, of the 1.8 million cosmetic surgeries performed in 2017, 300,000 of those surgeries were breast augmentations. This was a 3% increase from 2016.

Breast implants come in two forms: silicone and saline. Silicone mimics the feel of natural breast tissue much better than saline, but it poses serious health risks if the implant ruptures or leaks. Saline, on the other hand, will not cause harm if it leaks into the surrounding tissue structures and requires a much smaller incision site than silicone implants. Because of these factors, saline implants are considered safer than silicone.

According to this study, while saline implants are safer when they rupture, they are at a higher risk of spontaneous rupture than silicone implants. The average time for a saline implant rupture was about five years, whereas silicone implants had an average rupture time of twelve years. However, saline implants are easier to replace and will not leak toxic silicone into the body, so many surgeons recommend them over silicone for safety reasons.

Men and women who are looking to have breast augmentation surgery can have saline implants at age 18. For those who elect to use silicone implants, the FDA guidelines set the age requirement at 21 years.

Reasons for breast augmentation surgery

There are a variety of reasons why people choose to have breast augmentation surgery. The most common reason is for cosmetic purposes. Women who are unhappy with the size, shape, or feel of their natural breasts find breast augmentation to be a reasonable surgery to help them feel more confident and satisfied with their bodies.

While it’s a common public perception that women who elect to have breast augmentations want larger breasts, that is not always the case. Some women have unevenly sized breasts or breasts that are not asymmetrical. Breast augmentation surgery can correct these issues without increasing breast size.

Many women who have had mastectomies because of breast cancer are turning to breast implants to restore their their natural shape and size. After actress Angelina Jolie revealed that she had had preemptive mastectomies and breast augmentation surgery when she discovered she carried the BRCA1 gene, the plastic surgery industry saw a boom of women turning to breast implants after their own mastectomies. This was coined the “Angelina Jolie Effect” by many in the plastic surgery industry. Many women opted for elective mastectomies after undergoing genetic testing and discovering they carried the BRCA1 gene, too.

Women who are unhappy with their breasts as they age, or after they have kids, are opting for mastoplexy surgery to lift and tighten the skin that begins to loosen over time. While mastoplexy surgery alone does not involve breast implants, some women choose to have both surgeries done at the same time to rejuvenate their breasts and chest area.

While the majority of breast augmentation patients are women, men get breast implants, too. Men who are undergoing gender reassignment surgery are also common candidates for breast augmentation surgery as they transition. Many plastic surgery centers across the country that focus on gender reassignment procedures. Additionally, some men who have had breast cancer and undergone modified radical mastectomies (MRMs) may opt for small breast implants to restore their chests to their regular shape and size.

Medical malpractice and breast augmentation

There are many reasons why breast augmentation surgery can go very wrong. The most common reasons for filing a lawsuit after breast augmentation is disfigurement, accounting for 53.1% of the cases examined in this study from 1985-2012 and published in 2013 in the Aesthetic Surgery Journal. Combined with disfigurement were claims of negligence and fraud, which bolstered the cases in court.

Procedural negligence, including improper placement, using the wrong kind of implants, or lack of sterilization leading to preventable infections are some of the reasons why a medical malpractice case might need to be filed against the plastic surgeon. Non-reputable surgeons have also been known to try to cut corners with their patients, using expired or homemade implants which can lead to serious complications and pain in the patient.

Improper placement of the breast implants can lead to other issues, including:

  • Tissue necrosis
  • Toxic Shock Syndrome (TSS)
  • Premature or spontaneous rupture
  • Decreased sensitivity in the nipples
  • Hardening or thinning breast tissue
  • Autoimmune disorders

While some of these issues may be the result of the body not accepting the implants, there should be a strict screening process with the plastic surgeon first to ensure the patient is a good candidate. If the patient was not screened, or not screened completely, the surgeon may be liable for the complications if it can be ascertained that they knew the patient would not be able to tolerate the implants.

Another common reason for lawsuits related to breast augmentation is a lack of informed consent. Surgeons are required by law to explain the risks of surgery to their patients before performing the surgery. The patient must sign an acknowledgement of these risks, which denotes that they gave their informed consent for surgery. According to the Aesthetic Surgery Journal study, lack of informed consent made up 43.8% of the lawsuits filed in court. Settlements in the 292 cases examined found that most settlements ranged between $245,000 and $300,000.

Finally, some brands and types of implants turn out to be defective, causing the body to reject the implant and leading to serious infections and disfigurement. If a surgeon knowingly uses these implants when they’ve been discontinued or shown to have many problems, the surgeon may be liable. Others have pursued damages against the manufacturers of the implants. A class-action lawsuit in 1993 led to a $4.25 billion settlement against four silicone implant manufacturers.

Case law

Men and women who have undergone breast augmentation surgery and experienced disfigurement or complications have many years of case law to help support their lawsuit in court. In 2010, a Fort Myers woman was awarded an $8.25 million settlement in a claim against her plastic surgeon who cut the blood supply to her breasts during an augmentation. The result was devastating, leading the woman to lose both of her breasts.

A 49-year-old New York woman was awarded $1.1 million in damages after her plastic surgeon failed to inform her that the risks of plastic surgery carried a 20% risk of complications, instead telling her that there was only a 1-2% risk. She experienced serious complications and disfigurement as a result of the botched surgery.

Another New York woman was awarded $3.5 million after her successful lawsuit against a surgeon who rushed her through the informed consent process, which is just as illegal as not advising a patient of the risks. She was handed 12 pages to read through and sign minutes before her surgery. The botched surgery led to permanent disfigurement, marital troubles due to the surgery which ended in divorce, and subsequent surgeries to try to repair the disfigurement.

Medical malpractice cases in Michigan

In Michigan, there is a two-year statute of limitations on filing a claim for medical malpractice. If complications arise after this two-year limit, there may be some cases where a judge will waive the limit and raise it to up to six years.

You will need to hire an experienced medical attorney at Cochran, Kroll & Associates, P.C., as soon as you suspect your breast augmentation has gone wrong. Your lawyer will begin compiling evidence on your case, which is best done sooner rather than later. Hospital negligence lawyers at our law firm will need to assess your case and present it to a panel comprised of doctors and lawyers who will decide if your case meets all of the criteria for medical malpractice. These criteria include:

  • The doctor or facility violated the standard of care which is dictated by law and expected to be employed with every patient
  • The injury is the result of a negligent act on behalf of the doctor or medical facility
  • The injury has resulted in economic and noneconomic damages

While some people may be hesitant to hire an attorney, lawyers specializing in malpractice at our law firm have the means to compile your case in a meaningful way which will strengthen it when it goes to court. We also have access to expert witnesses who can testify on your behalf that your complications are the result of negligence. In fact, cases which use expert plastic surgeon testimony are more likely to award damages in favor of the plaintiff.

In Michigan, there are no caps on economic damages. You can pursue compensation for medical bills, lost wages, transportation, and costs of care. These damages can include future care or corrective surgeries to fix your botched breast augmentation.

There are caps on noneconomic damages which include pain and suffering, loss of enjoyment, and marital suffering as a result of the injury and complications. The lower cap currently stands at $465,900. These injuries, while painful, inconvenient, and potentially disfiguring, usually do not result in permanent disabilities.

If you suffered complications during surgery, potentially from improper administration of anesthesia, not enough oxygen, or a cut off of blood flow which led to a brain injury or paralysis, you may be entitled to seek the higher cap of damages which are currently set at $832,000 in Michigan. These injuries include permanent disabilities, cognitive impairments, and permanent damage to reproductive organs.

For men and women who have suffered complications or even death from defective breast implants, the product liability laws are different from medical malpractice laws in Michigan. You have a three-year statute of limitations to file a product liability lawsuit. Your noneconomic damages are capped at $280,000; however, if the defective product resulted in death or vital bodily function loss, you can seek damages of not more than $500,000.

Final thoughts

While breast augmentation surgery and other elective cosmetic procedures are meant to help people feel more confident about their appearance, some surgeries can go terribly wrong. It’s important not only to read over all of the risks associated with elective surgeries but also to make sure the surgeon you are choosing is reputable and well-established.

Unfortunately, some plastic surgeons who move from one practice to the next and don’t put the well-being of their patients first. They cut corners and sometimes commit illegal acts during surgery. This can result in a lifetime of pain, suffering, and disfigurement for their patients.

If you are the victim of medical malpractice from your cosmetic surgery, don’t hesitate to contact an experienced medical attorney at our law firm today. Help hold these negligent surgeons responsible for their actions.

Contact us today

Eileen E. Kroll is uniquely qualified to take on your breast augmentation malpractice lawsuit. Eileen is an experienced trial lawyer and a registered nurse. She will use her medical background to help compile the right evidence and build your case so that you have a good chance of winning or receiving a hefty settlement for your injury. At Cochran, Kroll, and Associates, P.C. we don’t get paid until you win your case. We are motivated to help you get justice for your pain and suffering.

Contact Cochran, Kroll, and Associates, P.C. today at 1-866-MICH-LAW (1-866-642-4529) for a no obligation case review and let Eileen get to work on your medical malpractice case.

Joy is a professional writer with 12 years of experience, and she spent 10 years as a high school English teacher. Joy has her Bachelor of Arts in English and Secondary Education, and she's working on her Master of Arts in English. She has three years of experience writing about legal matters including medical malpractice, car accident insurance law, and pet ownership rights. She enjoys spending her time with her three dogs.

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