Medical negligence claim against cosmetic surgeon for failed breast augmentation surgery

Compensation for damages – Assessment of damages for injuries from breast augmentation surgery

Earlier this year, the District Court assessed damages for two similar breast augmentation surgery claims.

Breast augmentation surgery is a procedure to enlarge the breasts by inserting implants into the breast tissue.  This might be as part of breast cancer treatment following mastectomy (removal of breasts), to restore breasts to their pre-pregnancy and breast-feeding state, for aesthetic or other purposes.

The surgery carries the significant risks attached to invasive surgery, as well as risks specific to the augmentation procedure itself, including the risk of deformity, disfigurement, infection, mal-positioning, nerve damage and improper tissue dissection.  Due to the complexity of these procedures, breast augmentation surgeries should be performed by appropriately trained, qualified and experienced surgeons.

The claims being assessed were made by two individual plaintiffs against medical practitioner (GP) Dr Leslie Blackstock.

Dr Blackstock was found to have lacked the specialist training and the expertise required to perform breast augmentation surgery (Hammond v Blackstock [2023] NSWDC 51, [29]).

Dr Blackstock did not have legal representation, and because he did not defend the claim, default judgment had entered against him, and both claims determined in favour of the plaintiffs.  It then fell to the District Court to assess the damages (compensation) for the plaintiffs.

At the time the Court undertook the assessments, Dr Blackstock’s medical registration had already been cancelled, as a result of separate NCAT proceedings in September 2020 in which NCAT had found him guilty of professional misconduct and unsatisfactory professional conduct.  You can read more about the NCAT decision here and the telling experiences of numerous women who had undergone surgery at the hands of Dr Blackstock.

The factual background of both claims were highly unusual.  The plaintiffs had both undergone breast augmentation surgery by Dr Blackstock at a house in Penrith, without expected safeguards and precautions in place, such as a specialist anaesthetist on hand and proper infection control measures.

It was alleged that Dr Blackstock instructed both his patients to sit up mid-procedure so that they could examine themselves in a mirror to check whether they were happy with the size and placement of the implants before completing the surgery.  In some cases, Dr Blackstock would invite friends and/or relatives into the operating room to view the patient’s breasts mid-surgery.  For example, in the separate NCAT proceedings, one patient:

…was advised she would be woken during the surgery to check whether she was happy with the implant, and a family member or friend could also come in to the surgery to provide an opinion.

Ms Archer’s experience – Archer v Blackstock

Ms Archer underwent breast augmentation surgery by Dr Blackstock on 7 September 2017.  The operation took place at a house in Penrith.

Although Ms Archer “stoically” made no claim for loss of income or earning capacity, she was awarded compensation for non-economic loss (pain, suffering, loss of enjoyment and amenities of life) at $282,000, for future out of pocket treatment expenses at $80,000 and for past treatment expenses at $9,000, being a total amount of $371,000.

Non-economic loss

Ms Archer had two children.  She was interested in undergoing breast augmentation surgery to achieve a fuller appearance of her breasts and had waited until her children were older to undergo the surgery so as not to disrupt their day-to-day life.  She had no pre-existing conditions relevant to her claim.

The Court heard evidence that Ms Archer was blindfolded by Dr Blackstock for the procedure.  She experienced intense pain during the surgery and could feel Dr Blackstock’s hands, particularly his thumb and index finger, ripping apart her breast tissues and forcefully pushing in the breast implants.  At times, she was screaming in excruciating pain.

“She recalled, in horror, having been roused to sit up in a chair during the procedure in order to see herself in a nearby full length mirror.  She was shocked at the sight of the lacerated cuts to her breasts.  She was also shocked to see the tubes, blood, and protruding fatty tissues.  She became aware of Dr Blackstock forcefully pushing in the breast implants.  She then blacked out and remained unconscious until she awoke in the recovery room.”

Post-operatively, Ms Archer experienced a painful recovery with haematomas that required hospital intervention and several hospital admissions, breast swelling, pain and infection.  She now needs multiple staged surgeries to try to correct the damage caused by Dr Blackstock.

Expert witness Dr Howard de Torres, plastic surgeon gave evidence that:

• The surgery had not taken place in a properly certified operating theatre;
• The implants had been placed too high on the chest;
• She likely had nerve damage, which was the cause of her ongoing pain;
• There was no appropriate post-operative after care by Dr Blackstock. He had failed to manage the plaintiff’s post-operative breast haematomas and failed to place a drain, among other things.

As a result of the surgery by Dr Blackstock, the Court heard how the plaintiff was left in a traumatised and distressed state.  She need for further multiple staged corrective repair surgeries to fix the damage she has been left with by Dr Blackstock.  She continues to suffer pain and sensitivity of the breasts, impaired body image and difficulty with intimacy.  In addition to the physical damage to her chest and breasts, her mental health has also been detrimentally affected.  She considered herself “damaged” and “ruined”.  She can no longer exercise as she used to.  She is in constant “stabbing” pain from nerve damage.  She requires pain medication.

“The plaintiff described how, day-to-day she feels she “crumbles”, especially when her thoughts take her back to Dr Blackstock’s surgical treatment of her.  She said that it can variously take hours or days for her to recover her equilibrium and a normal mental state… On a daily basis she cannot bear to look in the mirror to see her breasts…”

Ms Archer’s damages for non-economic loss were assessed at 40 per cent of a most extreme case, being a monetary equivalent of $282,000.

Past and future treatment expenses

Past treatment expenses were assessed at $9,000.

The Court recognised that Ms Archer would be required to undergo multiple staged corrective surgeries in an attempt to fix the damage suffered under the hands of Dr Blackstock.  That surgery was estimated to cost $60,000.  The Court also allowed a buffer of $20,000 for pharmaceutical, medical and psychologist expenses.  The total amount assessed for future treatment expenses was $80,000.

The Court ordered judgment for the plaintiff for a total damages sum of $371,000.

As the plaintiff’s claim was successful, she was also entitled to an order that the defendant pay her legal costs on the ordinary basis.

Ms Hammond’s experience – Hammond v Blackstock

Assessment of heads of damage claimed by Ms Hammond

Ms Hammond was a 23 year old nurse at the time Dr Blackstock operated on her.  She was married with three children.  She had had a difficult childhood and presented with a history of some psychological issues as a result of her upbringing, but was in a relatively stable and successful stage of he life, at the time of her treatment by Dr Blackstock.  She also had a history of Crohns’ disease.

Ms Hammond was interested in having breast augmentation surgery after having children.  She thought that her breasts had changed in appearance after pregnancy and breastfeeding and she wanted to improve their appearance as well as her confidence and self-esteem.

She consulted with Dr Blackstock.  It was alleged that he persuaded her to opt for a larger implant size than the C cup she would have otherwise chosen for herself.  This might have been in an attempt by Dr Blackstock to avoid her having a breast lift (mastopexy).  A mastopexy is a difficult surgery again, and most cosmetic surgeons do not offer it, although it is a procedure often required by women to address ptosis.  Implants alone in patients with ptosis, will not usually result in a satisfactory outcome, and carries a higher than usual risk of deformity and physical disfigurement.

Dr Blackstock operated on Ms Hammond at the same house in Penrith under sedation.

Ms Hammond was conscious of what was going on around her during her procedure.  She experienced severe pain when Dr Blackstock made the first cut across the inframammary fold.  He then had to wait a time for the anaesthesia to become more effective.

The Court considered evidence that mid-procedure, Dr Blackstock made Ms Hammond sit up to examine her partly completed surgery in a mirror.  It was distressing for her to view her lacerated breasts.  During the procedure she could smell “burning flesh” and felt a deep scraping sensation across her chest wall and ribs, likely the dissection of her tissue by Dr Blackstock as he created pockets for the implants to sit in.  This might have been avoided, had an anaesthetist been involved in the procedure.

Post-operatively, Ms Hammond experienced a feeling of suffocation and had difficulty breathing.  Initially, she wasn’t aware that the implants were too big for her frame, being an F – G cup (she had initially wanted a C cup).  Dr Blackstock told her that this was normal.

She then developed what she thought was an infection.  It was alleged that Dr Blackstock refused to speak to her about the infection, and had his staff direct her to her General Practitioner (GP).  Her GP prescribed her with antibiotics.

She experienced extreme pain.  She found her F – G cup breasts to be unnatural, painful and the incisions remained infected.

Her psychological distress and pain continued and she was unable to continue working as a nurse.

Ms Hammond formed a belief that she could, “no longer be a cog in the wheel of a system where, unknowingly, patients whilst in her care, could be harmed, as she had been”.  Levy J accepted that position and that as a result, her income earning capacity as a Nurse had been destroyed.

On 12 May 2018, the plaintiff saw specialist plastic surgeon Dr Knight.  He removed the implants and noted that Dr Blackstock had used improper methods to insert the implants.

At the date of judgment, Ms Hammond still required further multiple staged corrective surgeries, to attempt to address and rectify the damage caused by Dr Blackstock, which the Court accepted would expose her to further trauma, distress and discomfort.

Breach

Although the Court was not required to consider breach, note was made of evidence to the effect that:

• Dr Blackstock’s surgical technique was inadequate;
• There were breaches in the sterility of the surgical environment at the house Dr Blackstock operated at;
• The post-operative management and care by Dr Blackstock was lacking particularly relating to post-operative infection care and treatment; and
• Dr Blackstock lacked the appropriate level of training and expertise to perform the surgery, from which Levy J inferred in itself was “plainly negligent”.

Assessment of injuries, loss and damage

Levy J accepted that all aspects of Ms Hammond’s family, personal, domestic and work activities had been detrimentally affected to a significant degree, and continued to be.

Injuries

The injuries and disabilities suffered by Ms Hammond as a result of the failed surgery by Dr Blackstock, included:

• Diagnosed left breast Baker Grade IV capsule (capsular contracture);
• Physical deformity and disfigurement;
• Restricted upper torso and arm movements;
• Hardness in left breast, painful to touch and pain when pressure is applied;
• Ongoing pain and emotional difficulties;
• Altered breast and nipple sensation;
• Affects to physical intimacy;
• Inability to continue working as a nurse;
• Post Traumatic Stress Disorder, Major Depressive Disorder, Dysthymia and Body Dysmorphia Disorder on a background of Borderline Personality Disorder as diagnosed by psychiatrist, Dr Kaplan.

The plaintiff’s damages for non-economic loss for pain, suffering, loss of enjoyment and loss of amenity of life, was assessed at 42 per cent of a most extreme case pursuant to s 16 of the Civil Liability Act, being the monetary equivalent of $296,000.

Past economic loss

Past loss of wages were calculated to be $300,000 net.  This was noted to be a conservative estimation.

Past loss of superannuation

Past loss of superannuation, calculated at 11 per cent of the amount assessed for past economic loss of $300,000, was determined to be $33,000.

Loss of earning capacity into the future – future loss of income

The Court assessed future economic loss at the net amount of $422,448.  Levy J considered the difference in wages between Ms Hammond’s job in a supermarket as an on-call part-time check-out operator, and what she would otherwise have earned had she continued her nursing career.

The Court found that the plaintiff’s capacity to earn a living as a nurse had been destroyed, as a result of Dr Blacklock’s surgery on her.  But for the negligence, the plaintiff would have continued to be able to pursue her nursing career until normal retirement age of 67.  The Court allowed a slightly higher discount rate than would otherwise be applied for the usual vicissitudes as a discounting factor on account of the plaintiff’s history of Crohn’s disease and her earlier psychological issues that might otherwise have affected her future income earning ability, even without the effects of Dr Blackstock’s negligence on her.

Future loss of superannuation benefits

Future loss of superannuation benefits, calculated at 14.5 per cent of the amount assessed for future economic loss of $450,000, was determined to be $61,254.

Past care and domestic assistance

As a result of the negligence of Dr Blackstock, Levy J accepted that Ms Hammond’s ability to perform her usual tasks of running her household was reduced, from the time of her injuries up until the hearing.

Ms Hammond was awarded an amount to compensate her for the loss of her capacity to perform those duties, allowing for a 6-week period of recovery that she would have needed in any event, had the surgery gone well.

Her husband had performed the household tasks in her place, but to a lesser standard.  That included:  washing, ironing, cooking, cleaning, general shopping, vacuuming, and mopping floors and tending to the needs of the children for an average of 20 hours per week.

The Court compensated the plaintiff for her “modest” claim of 8 hours per week at the average statutory rate of $32 per hour, being $256 per week or $84,480 over the entire period of 330 weeks from the date of injury to the trial, pursuant to s 15 of the Civil Liability Act.  The total amount assessed for the plaintiff’s damages for past domestic assistance was $84,480.

Future treatment expenses

The plaintiff claimed and was awarded future treatment expenses of $90,000, being:

• Future surgical expenses totalling $95,000 being for reasonable staged corrective procedures including for removal of implants, capsulotomies, staged repairs to anatomical structures and re-implantation of appropriately sized implants;
• The amount of $95,000 was discounted by the 5 per cent actuarial deferral factor of 0.907 for 2 years, getting to the sum of $86,165.
• The Court allowed an additional $5,000 for the likely cost of future medical consultations, medications and psychological counselling sessions, assessing the plaintiff’s overall damages for future out-of-pocket expenses in the rounded sum of $90,000.

Past out-of-pocket expenses

The plaintiff’s claim for out-of-pocket expenses incurred up until the trial date was noted to be conservative, as the surgery performed by Dr Knight was carried out in the public hospital system.  The amount of $2,197 was assessed for her past out-of-pocket expenses.

Summary of damages assessment

The plaintiff received judgment in her favour for damages totalling $1,378,241.  As she was successful in her claim she also received an order that the defendant pay her legal costs calculated on the ordinary basis.  A summary of the heads of damages awarded follows:

You can read the full judgment, here:  Hammond v Blackstock [2023] NSWDC 49

Conclusion

The cosmetic surgery industry has grown rapidly in Australia.  However, that growth has not come without challenge.  The industry has come under increasing media, legal and regulatory scrutiny, for safety and regulatory gaps that have seen disastrous outcomes, like those detailed above.

These cases highlight the devastating effects of failed cosmetic surgery, suffered by those who have undergone such treatment at the hands of improperly trained, qualified or experienced cosmetic surgeons.  Cosmetic surgeons usually have no specialist training or qualifications to perform these types of invasive and technically difficult surgeries and sadly, cases like Ms Hammond’s  and Ms Archer’s, are not uncommon.

Related

The assessment of damages by Levy J for Ms Archer, as arising from the failed breast implant surgery performed by Dr Leslie Blackstock – you can read the full judgment, here:  Archer v Blackstock [2023] NSWDC 50

The assessment of damages by Levy J for Ms Hammond, as arising from the failed breast augmentation surgery peformed by Dr Leslie Blackstock – you can read the full judgment, here:  Hammond v Blackstock [2023] NSWDC 49

The NSW Civil and Administrative Tribunal (NCAT) decision against Dr Blackstock, involving numerous of his past patients – you read the full decision here:  Health Care Complaints Commission v Blackstock [2020] NSWCATOD 110.

A summary of the NSW Civil and Administrative Tribunal (NCAT) proceedings and ruling against Dr Blackstock can be found here.

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