Ballard v. Kerr – Liposuction Lawsuit Alleges Medical Malpractice of Surgeon

Gregg Hollander | August 11, 2016 | Medical Malpractice

A liposuction surgery went horribly wrong, according to the husband of the patient who died less than a week after undergoing the knife.

Now, the Idaho Supreme Court in Ballard v. Kerr has affirmed plaintiff’s nearly $4 million damage award, though the court did order a reassessment of attorney fees. This ruling came after defendant, Silk Touch, rose 21 issues upon appeal. Those included the sufficiency of evidence supporting the verdict, the fact the lower court allowed jurors to submit questions to witnesses and allegedly improper comments on evidence during trial. The court rejected all but the attorney fee issue.

Defendant in this case is a medical spa that performs cosmetic surgery procedures. Defendant doctors is a trained anesthesiologist. Initially, the spa only offered mildly invasive cosmetic procedures, such as Botox treatments, dermal fillers and laser hair removal. However, the company branched out and started offering liposuction and fat transfers beginning in 2007. (A fat transfer involves taking fatty tissue from one area of the body and transferring it elsewhere.) 

According to court records, decedent patient was a 27-year-old staff sergeant in the U.S. Air Force who was stationed in Idaho. She visited defendant office for a consultation on having liposuction and a fat transfer. She wanted fat transferred from her stomach and thighs to her buttocks. The doctor reportedly explained she was a good candidate for surgery, being that she was both young and healthy.

The procedure was carried out in July 2010. During the procedure, the anesthesiologist used both disposable and reusable medical equipment. Later testimony by staffers indicated the company didn’t have any written procedures for disinfecting and sterilizing reusable medical equipment. However, it was standard practice with regard to a certain hand piece to wipe it down and then put it in an autoclave.

Other reusable equipment was soaked in a basin that contained Hibiclens and water before being scrubbed with a brush and then placed in a different autoclave. These autoclave devices then sterilize the equipment by applying steam at a high temperature.

Following the operation, decedent was sent home and scheduled for a follow-up appointment two days later. The morning of the appointment, the office received a call from patient reporting immense pain in her buttocks. The post-op appointment was moved up.

Defendant doctor examined her and did not note any obvious signs of infection and found she appeared to be healing normally. Her husband was reportedly not aware of plaintiff’s surgery, but returned home the evening of the appointment. She did not tell him about her surgery, but he noted she seemed to be very ill and in pain.

It wasn’t until the next evening that she told him of the surgery and he called the doctor, who instructed him to check her temperature, which seemed normal.

Later that night, plaintiff was awoken by his wife asking him to call 911. She was having trouble breathing. Test results should she was suffering renal failure brought on by septic shock, which occurs when an infection has entered a person’s blood stream. Her condition worsened. She was transferred tot he intensive care unit. She showed signs of respiratory failure. She was placed on life support, had four heart attacks and died July 25, 2010 – four days after her surgery.

Plaintiff prevailed at trial, in which jurors found defendant breached the standard of care (and committed medical malpractice) by failing to disinfect and sterilize equipment and that this breach was the proximate cause of decedent’s death. They awarded plaintiff $2.5 million in economic damage sand $1.25 million in non-economic damages. He was also awarded $70,000 in attorney fees for an earlier mistrial.

The state supreme court found there was ample evidence to prove plaintiff’s case, the lower court did not abuse its discretion during trial. The court did find that the issue of attorney fees should be reconsidered.

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Additional Resources:

Ballard v. Kerr , Aug. 4, 2016, Idaho Supreme Court