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Surgeon loses legal bid over botched breast surgery case

A surgeon has lost a bid to quash a $172,000 judgment against him over botched breast surgery that left a woman depressed and disfigured.

The patient was later able to get corrective surgery, but said the failed operation had contributed to the end of her marriage and caused her to seek counselling.

The Bermuda Supreme Court ruled in her favour in 2016 after the doctor failed to appear, but he claimed he was not properly notified about the case and did not have a chance to defend himself.

But Puisne Judge Larry Mussenden said in a ruling delivered on May 13 that the doctor, who was not named in the ruling, repeatedly ignored orders to appear before courts in Bermuda and New York.

Mr Justice Mussenden found that the electronic service of notice was effective but the doctor had failed to respond.

He said: “The start point is that the defendant claims that his employees did not inform him of the electronic notices of the Bermuda litigation sent to his medical practice on or around July 2016 when he notes that eleven pleadings were sent electronically.

“I have not been provided with any other explanation or evidence for the delays in respect of any events after July 2016 or in respect of the New York proceedings.

“In any event, the defendant did not submit to the Bermuda court once he was effectively served.

“Additionally, the defendant did not submit to the New York Court until he was shackled at his office premises and brought before the court.”

Mr Justice Mussenden said that even after his arrest, there were seven occasions when the doctor was required to appear before a court or comply with an order and failed to do so.

He added the doctor said the patient was a “train wreck” with a “very low IQ” in an affidavit and highlighted his own accomplishments and credentials.

Mr Justice Mussenden said: “In my view, it is irresistible to conclude that the defendant takes offence to the litigation brought by the plaintiff, and is likely saying that as a man of his stature, he need not be bothered with the plaintiff, a person of lower standing than he, her complaints, as well as her legal proceedings against him.”

The Supreme Court heard that in 2009 the doctor agreed to perform cosmetic surgery including breast augmentation on the patient, who paid $11,700 for the work.

But the patient said her breasts healed with “severe disfiguration” which contributed to the breakdown of her marriage and led to emotional and psychological distress.

The patient returned to the doctor in 2013 to have the implants removed.

But after the operation she suffered more problems including infection, scarring and the loss of her nipples.

She later underwent corrective surgery in the US under a different surgeon.

The patient launched legal action against the doctor for “personal injuries” in 2015, but the doctor had already left the island to work in New York.

Notice of the action was served electronically, but the doctor did not respond and a judgment in default was made against him in March 2016.

The court estimated the damages to be $172,487 in September that year and notification was sent to the authorities in the US to enforce the judgment.

The doctor was sent further summons and subpoenas, but he was arrested at his New York office in May 2019 after he failed to appear or respond.

The doctor filed an application to the Bermuda Supreme Court in January 2020 to have the 2016 judgment against him set aside.

He claimed he was never properly notified of the legal action and that he only learnt about the decision when he was brought before a US court in shackles.

The doctor said the notices were sent to his medical practice’s Facebook page and his official e-mail address as published by his practice’s website, but that both accounts were managed by his staff and he was not informed.

He added that he had a legitimate defence to the claims, including that the patient came to him with “terrible” prior implants and that she failed to follow medical advice.

But the patient denied the doctor’s claims – and said she never had implants, scarring or deformities before the operations performed by the defendant.

Mr Justice Mussenden added that the doctor appeared to acknowledge in legal documents that the patient had “no scars, stretch marks or deformities” prior to the first surgery.

The judge said: “In my view, once the defendant has admitted these significant facts, then his defence is significantly weakened, if not destroyed.”

He added: “The plaintiff exercised her right to pursue legal proceedings against the defendant and to engage him accordingly but he chose not to engage until he was brought before the court in shackles.

“Therefore, the conduct of the defendant in not submitting to the Bermuda court or the New York court until brought to the New York court in shackles contributed to the extraordinary delay, which supports my view that the judgment should not be set aside.”

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