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Callaghan v. Jacobs

March 30, 2010


The opinion of the court was delivered by: The Honorable Sidney H. Stein, U.S.D.J.



This diversity action, in which plaintiff Michele Callaghan ("Plaintiff") has asserted claims against defendant Brad J. Jacobs, M.D. ("Defendant"), for medical malpractice and lack of informed consent, has been referred to me for the purpose of conducting a damages inquest, following entry by the Court of a default judgment against Defendant. (See Dkts. 11, 12.) For the reasons that follow, I recommend that Plaintiff be awarded a total of $785,000 in damages, as she has requested.


A. Factual Background

As set out in Plaintiff's Complaint, Proposed Findings, and supporting declarations and exhibits,*fn1 the events that gave rise to this action may be summarized as follows. Plaintiff is a resident of Massachusetts, and was born on September 2, 1965. (Compl., at ¶ 2.) In June, 2005, Plaintiff learned that her silicone breast implants, which had been implanted approximately 15 years before, had ruptured, causing "silicone lumps" to form in both of her breasts. (Proposed Findings, at ¶ 1.) Once Plaintiff learned about the rupture, she consulted Defendant about replacing her old implants with new silicone implants. (Id. at ¶ 2.) Defendant, a resident of New York, was a licensed physician who specialized in plastic and reconstructive surgery. (Compl., at ¶¶ 3-5, 7-8; Proposed Findings, at ¶ 2.) Defendant recommended that Plaintiff undergo a procedure known as the "Bellini lift." (Proposed Findings, at ¶ 3.) He explained that, in performing the procedure, he would make incisions around each of Plaintiff's areolae, and, through those incisions, would insert new silicone implants, which would, in turn, lift Plaintiff's breasts. (Id.) Some time later, Plaintiff visited Defendant again and, at this time, apparently informed him that she was interested in undergoing the procedure, although, in terms of cup size, she "wanted to be a 'full C' or a 'small D.'" (Id. at ¶ 4.) When Plaintiff "adamantly informed" Defendant that she did not want to be a "large D," Defendant attempted to convince her otherwise. (Id.)

On October 11, 2005, Defendant performed breast augmentation surgery on Plaintiff. (Id. at ¶ 5.) Approximately one week later, Plaintiff visited Defendant for a post-operative examination. (Id. at ¶ 6.) During the examination, she complained that here breasts were swollen, misshapen, and bigger than a "DD" cup size. (Id.) She also informed Defendant that there were dark patches of skin surrounding her areolae. (Id.) Defendant told Plaintiff that the swelling and misshapenness was normal and that it would improve with time. (Id.) He also prescribed an ointment to apply to her areolae that would "aid in regrowing the dead tissue." (Id.) Approximately one week later, Plaintiff returned to Defendant's office for a follow-up examination. (Id. at ¶ 7.) At this time, Defendant removed Plaintiff's sutures, although the dark patches of skin around her areolae were still present, and he cut off dead patches of skin from around Plaintiff's areolae with scissors. (Id.)

After Plaintiff's sutures had been removed, she discovered that her areolae had started to separate from her breasts. (Id. at ¶ 8, Ex. 1 (Photographs showing Plaintiff's wound separations).) Plaintiff visited Defendant and showed him the separation, and Defendant advised Plaintiff to visit a wound care center. (Id. at ¶ 9.) Plaintiff thus visited and was thereafter admitted to Bay State Hospital, under the care of Dr. Richard Brown. (Id. at ¶ 10.) At that facility, Plaintiff underwent hyperbaric chamber treatments for two hours each day, for one month. (Id. at ¶ 10, Ex. 2 (Medical Records of Dr. Brown at Bay State Hospital Wound Care Center).) As Dr. Brown had never seen anything like Plaintiff's wounds before, during one of Plaintiff's office visits, he called in Dr. Melissa Johnson, a plastic surgeon. (Id. at ¶ 11, Ex. 2.) Dr. Johnson opined that Plaintiff's areolae had separated from her breasts because the implants that Defendant had inserted were "way too big for [Plaintiff's] body," and because Defendant had "taken the sutures out way too early." (See id.)

When Plaintiff finished the hyperbaric treatments, she was left with large, visible scars on both breasts. (Id. at ¶ 12.) Plaintiff then visited Defendant, who injected Plaintiff's areolae with a medication that, Defendant represented, would "flatten her scars out." (Id.) Also at this time, Plaintiff complained to Defendant that her breasts were too large, but Defendant "got annoyed and told... Plaintiff that the size of her breasts 'was just fine.'" (Id.) Plaintiff visited Defendant one final time on or about July 12, 2006, and again complained about the scarring and the size of her breasts. (Id. at ¶ 13.) When Plaintiff asked Defendant to take pictures of her breasts for his file, he did so, after he ripped her gown off in front of one of his assistants. (See id.) Defendant told Plaintiff that her breasts were fine, although, when her scars healed, she should return for a "possible revision surgery." (See id.) Plaintiff left Defendant's office in tears. (Id.)

In April, 2007, Plaintiff visited Dr. Johnson, seeking an opinion about her breasts, and a recommendation as to what could be done to alleviate her injuries. (See id. at ¶ 14, Ex. 3 (Medical records of Dr. Johnson ("Johnson Records")).) Dr. Johnson again expressed her opinion that the implants that Defendant had inserted in Plaintiff's body were too large, and that Defendant had removed Plaintiff's sutures too early. (Id. at ¶ 14.) Dr. Johnson believed that Plaintiff's options were limited as to what could be done, but she did recommend that Plaintiff reduce the size of her breast implants. (Id.) After her appointment with Dr. Johnson, Plaintiff scheduled another appointment with Defendant concerning her breasts and scars, but Defendant cancelled this appointment. (Id. at ¶ 15.)

On or about June 18, 2007, Defendant's medical license was suspended. (Id. at ¶ 16.) Defendant was charged with committing professional misconduct by (1) practicing medicine with negligence, (2) practicing medicine with gross negligence, (3) practicing medicine with gross incompetence, (4) performing professional services not authorized by the patient, and (5) engaging in conduct evidencing moral unfitness to practice medicine. (Id.) The alleged misconduct included allegations that Defendant had inserted implants that were too large for certain patients' breast pockets and had inserted implants that were larger than those his patients desired. (Id.) On September 21, 2008, Defendant admitted that he could not successfully defend against the charges and requested permission to surrender his license. (See id. at ¶ 17.) Defendant is thus no longer licensed to practice medicine in the State of New York. (Id. at ¶ 18.)

In the latter part of 2008, Plaintiff consulted with another plastic surgeon, Dr. Gerald Minniti, who opined that the large size of Plaintiff's implants had suffocated the blood vessels in her breasts, thereby causing her injuries. (See id. at ¶ 19, Ex. 4 (Estimate and Receipt for procedures performed by Dr. Minniti).) Dr. Minniti recommended that Plaintiff undergo a bilateral mastopexy*fn2 and, to reduce the size of her implants, a reduction mammaplasty.*fn3 (Id.) Plaintiff apparently underwent these procedures on August 21, 2008. (See id.)

Plaintiff maintains that, as a result of Defendant's actions, she has sustained serious and permanent physical damage to her breasts, including separation of the peri-areolar suture line; widening and deepening of peri-areolar scars; open, draining wounds in both breasts; the need for revision surgeries; local tissue and wound necrosis; extreme peri-areolar scarring and nipple distortion; ptosis; asymmetry of the healed nipple-areolar complex bilaterally; breast pain and sensitivity; pain in the rib cage; and emotional distress. (See Proposed Findings, at ¶ 24; see also Compl., at ¶ 13.) Plaintiff also claims that, as a result of Defendant's negligence, she was confined to her home for some time; she was unable to pursue her usual activities; she has been ...

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