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Anderson v. Beers

OPINION FILED JULY 13, 1979.

DELORES ANDERSON, PLAINTIFF-APPELLANT,

v.

DR. MORRISON D. BEERS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JACQUES F. HEILINGOETTER, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from a jury verdict and judgment for defendant in a medical malpractice action. On appeal she contends that: (1) the trial court erred in failing to direct a verdict for her, and (2) the trial court erred in failing to grant her a new trial on the ground that the jury verdict was against the manifest weight of the evidence.

In her complaint plaintiff alleged that she retained defendant "to perform reconstructive surgery to and augmentation of" her breasts in order to improve their appearance. She further alleged that prior to obtaining her consent defendant failed to inform her of the possible adverse results of the aforesaid surgery. Specifically, she alleged, defendant failed to inform her that following the surgery her breasts "could be deformed, lumpy, scarred, and otherwise repulsive and repellant in appearance." Plaintiff alleged that she would not have consented to the surgery had she been properly warned of the dangers. Defendant denied that he failed to warn plaintiff of the possibility of adverse results following the surgery.

At trial the following pertinent evidence was adduced.

For the plaintiff

Dr. J. Vickers Brown, under section 60

He is a plastic surgeon employed by defendant. He described plastic surgery as encompassing both reconstructive and cosmetic or aesthetic surgery. On June 21, 1973, he interviewed plaintiff to determine her medical history. Upon examination he determined that she had a "pstosis or sagging of the breasts" and "fibrosistic disease," a possible precancerous condition. The right breast had a "scar deformity" resulting from a prior surgery. There was no scar tissue on the left breast. Plaintiff desired assistance to improve the appearance of her breasts. The surgery required for such improvement would be performed by defendant and consisted of a two-stage procedure. The first stage was a subcutaneous mastectomy on both sides while the second was a reconstruction involving the insertion of augments or implants in the breasts. Distortion or "lumpiness" of the breasts and formation of scar tissue could result in about 20% of the cases. The standard practice prior to such surgery was to inform the patient as to any adverse results which might occur. He did not warn plaintiff of such adverse results nor did defendant do so in his presence. The lumpiness and distortion of plaintiff's breasts resulting from the operation performed by defendant cannot be corrected 100%.

Dr. Morrison D. Beers, under section 60

He is a physician and surgeon specializing in plastic and reconstructive surgery. He first saw plaintiff in his office on June 21, 1973. Dr. Brown initially interviewed her and then left the room. Plaintiff was very concerned about the appearance of her breasts, having had a portion of the right breast removed earlier. Upon examination he determined that she had fibrosistic disease which indicated a possibility of cancer. She feared the possibility of losing her entire right breast or developing cancer of the breast. He admitted that he did not record her concerns in his notes. At the interview he informed plaintiff that the purpose of the contemplated surgery would be to make her breasts more attractive. He reviewed the entire operation with plaintiff, informing her that additional corrective surgery is often required in such cases and that because she had especially lax skin the operation "was not an entirely routine affair." He told her there would be "wrinkling" and "looseness," but did not specifically use the word "lumpy." He subsequently performed the surgery on her.

He again examined plaintiff on October 11, 1973, two months after the operation, and determined that the skin on her breasts had not "firmed in" as expected. He admitted that the results of the operation were unacceptable, but he did warn her of those adverse results prior to the surgery. He admitted that she needs additional corrective surgery. He informed her prior to the original surgery that "scars often have to be revised and the tissue skin envelope has to be revised." He also informed her that her fibrosistic disease could make the healing following the operation a more complicated procedure.

Delores Anderson, on her own behalf

In 1968 she had a large cyst removed from her right breast. On June 21, 1973, she saw defendant for the purpose of improving the appearance of her breasts and having loose flesh removed from her stomach area. She "wanted a normal breast." Defendant and Dr. Brown told her of a successful operation and stated that there was no doubt her breasts would be "better than perfect." They did not warn her of any possible adverse results. They did not tell her, prior to the surgery, that additional surgery might be required or that she had fibrosistic disease which might cause problems. Had defendant not assured her of "pleasant, normal breasts" she would not have consented to the surgery. She is now very unhappy and humiliated with her breasts. She frequently has pain in the breasts.

On cross-examination she testified that defendant told her only that the operation was a two-stage procedure. Defendant told her that her body might reject the implants in the breasts and, if so, they would have to come out. She admitted that she signed a form consenting to an operation for "subcutaneous mastectomy and excision of excess abdominal skin." The consent form also states:

"I understand the nature and purpose of the operation, possible alternative method of treatment and risk involved and possibility of ...


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