Defense lawyer Michael Flint, left, said the plaintiff’s experts weren’t able to prove the need for more damages. Plaintiff’s lawyer Tony DelCampo said he plans to appeal. (John Disney/Daily Report/Rebecca Breyer)
Despite unchallenged evidence that a doctor botched efforts to repair a breast implant that burst through a woman’s skin, a Fulton County jury awarded her just $125,000 for her injuries, less than even the defense had suggested to cover her pain and suffering and future surgeries.
Because the verdict was more than 25 percent below a $200,000 settlement offer the defense made the month before trial, under Georgia’s offer of judgment statute, defense attorney Michael Flint said he would seek attorney fees for the period between the time the offer was made through the trial’s conclusion.
Flint, a Freeman Mathis & Gary partner, represented Dr. Brian Chadwick, a LaGrange obstetrician/gynecologist who had recently begun offering cosmetic surgery services when the underlying incident occurred.
At the trial, Chadwick admitted to “numerous violations of the standard of care” in his treatment of the woman after the implant failed, Flint said. “But even [the plaintiff's] very good experts had to concede that the original surgery was not malpractice, and that [the woman's injuries] is a known complication of that surgery.”
“We went ahead and admitted that he had made some mistakes that may have made the situation worse,” said Flint, who tried the case with firm associate Laura Broome. “The whole thing was: How much worse, and what does it take to make her whole?”
The plaintiff’s attorney, J. Antonio DelCampo, said he and his co-counsel will be filing motions challenging the verdict.
“We’re going to be filing a motion for new trial or, in the alternative, a motion for additur—asking the judge to increase the verdict if it’s contrary to the evidence. In this case the jury’s verdict was very inconsistent with the facts,” said DelCampo, who represents plaintiff Lisa Brazell along with DelCampo Weber & Grayson partner Randall Grayson and Newnan solo Lisa Reeves.
As to the potential for an award of attorney fees against his client, DelCampo said such a ruling would be a “travesty.”
“They put an offer of judgment on the table, and then not until the first day of trial did they admit negligence,” said DelCampo. “This OB/GYN didn’t know what he was doing, he was not prepared for post-surgery complications, [he] committed gross malpractice, then only admitted it at trial. What a miscarriage of justice if she were now forced to pay his attorney fees.”
Fulton County State Court Judge Fred Eady heard all the evidence the jury heard, and has “wide latitude” to decide how to handle the verdict and fee issues, said DelCampo, himself a former DeKalb County State Court judge.
Brazell’s troubles began in November 2009 when Chadwick, whom she was seeing as an OB/GYN patient, told her he had begun offering liposuction, “tummy tucks” and breast enhancement at his MedSpa, according to the plaintiff’s portion of the pretrial order.
Chadwick did not tell Brazell he had never performed a breast implant before, the plaintiff’s portion said, and Flint confirmed that the surgery was “either his first or second. It was definitely his first day doing it.”
Brazell, then 39, had the surgery on Nov. 13, 2009, and within days began to suffer complications. One week later she went to emergency room at West Georgia Hospital complaining of pain, nausea and vomiting and was diagnosed with a possible cellulitis infection. In mid-December 2009, Brazell “observed a hole developing on the bottom of her left breast” and immediately contacted Chadwick, who told her to place a feminine hygiene pad beneath it until he could see her. He soon met her at the beauty salon where Brazell worked and examined her, by which time the “implant had been exposed and contaminated.”
Later, at his office, Chadwick decided to suture the opening, but “because of the volume of the implant and the pressure it was exerting on the breast tissue,” the sutures failed to keep the opening closed and the implant protruded through the skin, according to the plaintiff’s account.
Brazell “saw Chadwick multiple times thereafter, where he continued to suture the opening without success,” the plaintiff’s lawyers added. “During this time, Ms. Brazell suffered excruciating pain and discomfort with the numerous failed attempts at salvaging the implant.”
In January 2010, Chadwick removed the implant and closed the wound. Against its manufacturer’s recommendations, he “saved the contaminated implant for future use” and, in February, reinserted it into Brazell, the plaintiff’s lawyers wrote.
The sutures again failed and, on Feb. 13, 2010—while she was visiting a boyfriend in Kennesaw, according to Flint—Brazell went to the Northside Hospital emergency room.
Chadwick was out of town and had left no on-call doctor, so the hospital referred Brazell to Atlanta plastic surgeon Kristin Boehm. When Boehm removed Brazell’s bandages two days later, the implant “fell out of her breast and into Dr. Boehm’s hand,” the plaintiff’s part of the order said.
Boehm closed the wound, inserted a drain and told Brazell she would need reconstructive surgery to repair the damage to her breast.
In her October 2010 suit, Brazell sued Chadwick and his practice, Haven Gynecology PC, for negligently failing to obtain the proper training to perform her surgery, mishandling her surgery and post-surgical treatment, failing to promptly refer her to appropriate care for her post-surgery complications, and of “abandoning” Brazell by not having an on-call surgeon available to handle her care while he was out of town.
The case was delayed by the death of Reeves’ original co-counsel, Atlanta attorney Charles Mathis Jr., in 2011; DelCampo came aboard about a year and a half ago, he said.
During a mediation before Arthur Glaser at Henning Mediation and Arbitration, Brazell’s team demanded the $1 million limit of Chadwick’s Catlin Insurance policy, which was declined, Flint said. Late last year the defense offered to settle the case for $200,000, and the plaintiff’s team responded with a “take it or leave it” demand of $500,000.
The case went to trial Jan. 21.
The plaintiff’s experts were Brazell’s plastic surgeon, Boehm, and Duke University plastic surgeon Michael Zenn, the attorneys said. The defense put up Carey Nease, a surgeon from Chattanooga who has performed more than 1,000 breast implants, Flint said.
On Jan. 24, a jury Flint described as well-educated, with four males and eight females, took between three and four hours to award Brazell $125,000. That was $30,000 below the $155,000 suggested by Flint in closing arguments as a reasonable figure to cover her pain and suffering and to pay for future reconstructive surgery, DelCampo said.
Because both the original and future surgeries are considered elective by Brazell’s insurer, he said, she must pay to correct Chadwick’s mistakes out of her own pocket.
“Everybody was shocked,” said DelCampo. Post-trial interviews with jurors revealed that one woman was adamantly opposed to giving Brazell “anything in six figures,” while the rest wanted to award her more, he said.
“Several said she made it known that she would not award any negligence damages,” DelCampo said. “Some of the others felt that they had to go along or our client would not get anything.”
“Most of them said they wanted to do something for her, but very few said she deserved a big payday,” said Flint.
The case is Brazell v. Chadwick, No. 10EV011176.