In this case, a plastic surgeon accused of providing inappropriate pre-surgery advice and inadequate follow-up care following revision bilateral breast reduction surgery resulting in the necrosis and loss of a patient’s right nipple-areola complex has had the case dismissed.

The key issues 
The issues in this case include obtaining informed consent, advising of material risks of surgery, and maintaining adequate clinical records.

The background 
On 7 July 2016, Dr Timothy Brown, the plastic surgeon, performed revision bilateral breast reduction on Ms Vicki Fischer.

Ms Fischer alleged that Dr Brown failed to recognise and treat the venous congestion that arose in her right nipple after surgery which resulted in the necrosis of her right nipple-areola complex (NAC) and multiple corrective surgeries.

Dr Brown saw Ms Fischer post-operatively on 8, 9, 12 and 19 July 2016. On the last of these occasions, he noted the NAC to be viable and improving. Eight days later, Ms Fischer reported that the NAC had turned black, hard and leathery.

It was found that, at the pre-operative consultation on 16 June 2016, Dr Brown had completed notes while sitting next to the patient on a couch, which he says was done so the patient could better see and understand the concepts he was explaining. The notes support Dr Brown’s position that he warned Ms Fischer of the acute risks of smoking (at all) before and after surgery. Dr Brown had also provided a consent form to Ms Fischer which warned her of such risks, which she signed and returned. Ms Fischer’s evidence was that Dr Brown had told her that she should reduce her smoking to four to five cigarettes per day. Other evidence showed that Ms Fischer was smoking at the time of her surgery. Dr Brown’s evidence was accepted in this regard.

The Court found that the consenting process was adequate.

Post-surgical examinations on 7 and 8 July 2016 found nothing that required attention. Evidence about what happened on the latter date relating to the extent of the examination performed was disputed between Ms Fischer and Dr Brown. Dr Brown’s evidence was that he conducted the examination with a nurse, touched each breast and visually observed them. He found that the degree of venous congestion was not normal but not so severe that anything other than watching and waiting needed to occur.

Ms Fischer’s evidence in this regard was that she was in significant pain, but this evidence was not accepted for several reasons including that a nurse had not recorded anything about her being in significant pain. The Court considered that Dr Brown had considered the issue of venous overflow and that his approach to wait and see was appropriate.

At further post-operative consultations, there was no evidence to support that Ms Fischer was in significant pain or that there was abnormal swelling, supported by the clinical notes of the nurses and Dr Brown.

The Court preferred the evidence of Dr Brown, most significantly based on his contemporaneous notes from the relevant pre and post-operative consultations, the consistent oral evidence he gave in Court and the consistency with the nursing notes.

Expert evidence for Ms Fischer, which postulated that Ms Fischer should have been taken back to theatre as there was a reversible cause for the venous congestion and suggested that the cause resulted from a large haematoma, a small haematoma, a kinked pedicle or tight sutures, was not accepted.

The Court found that there was no reversible cause for the venous congestion found on 8 July 2016 and there was no reason for Dr Brown to take Ms Fischer back to theatre or commence chemical leeching at that time.

The outcome 
The Plaintiff’s case was dismissed and judgment entered for the Defendant.

The implications 
This case reinforces that the maintenance of detailed, contemporaneous clinical notes is critical in supporting a practitioner’s clinical decision-making and version of events.

Information in this Bulletin does not constitute legal or professional advice.  Call us if you need advice on any of the issues covered in this article.

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