MIAMI – A state appeals court has affirmed a lower court dismissal of a case alleging a plastic surgeon botched a breast implant replacement surgery after it was learned the plaintiff and her expert witness hadn’t been truthful in legal filings about the procedure.
The Third District Court of Appeal filed its opinion July 16.
Arline Hermoso and her husband Ivan Hermoso had appealed a final order dismissing their second amended complaint with prejudice entered in favor of Dr. Camille Chavez and New Life Plastic Surgery.
In 2018, Chavez performed a breast lift and implant replacement surgery on Hermoso at New Life. After the procedure, Hermoso filed a medical negligence case against Chavez and New Life alleging the doctor negligently placed her breast implants above the muscle rather than beneath it and failed to provide adequate post-operative care for any vascular compromise resulting from the implant misplacement.
Dr. Paul Glat, an expert witness for Hermoso, said reasonable grounds existed to support the medical negligence claim. He said a plastic surgeon would have placed the implants beneath the muscle and provided appropriate care to address any vascular compromise resulting from the misplacement.
In response, Chavez says Hermoso failed to comply with the statutory pre-suit investigation requirement for a medical negligence action. Her expert, Dr. Darrell Henderson, said Chavez’ treatment was appropriate and within the applicable standard of care.
During the course of the litigation, Chavez and New Life deposed Hermoso, who admitted Chavez had placed the implants beneath the muscle. Chavez and New Life then filed a motion to dismiss, arguing Hermoso testified under oath the implants were placed beneath the muscle. After the motion to dismiss was filed, Hermoso had surgery to remove the implants.
Miami-Dade County Circuit Court Judge Beatrice Butchko Sanchez conducted a hearing on the motion to dismiss and denied it without prejudice, saying the issue of implant placement still was contested. She also ordered an independent medical examination.
During a later deposition, Dr. Jason Altman testified he had removed Hermoso’s implants that had been properly placed beneath the muscle. Chavez and New Life filed a second motion to dismiss, and it eventually was granted.
The judge dismissed the case, saying Hermoso failed to satisfy the statutory requirement for a reasonable pre-suit investigation and that no separate claim of negligent post-operative care could proceed because it was “inextricably linked to the improper placement of the implants.” This appeal followed.
Hermoso argues the lower court erred in dismissing her second amended complaint with prejudice because her notice of intent to litigate satisfied the statutory requirement of a reasonable pre-suit investigation. In Wednesday’s opinion, the appeals court finds “this argument meritless.”
“Requiring a written expert opinion as part of the pre-suit investigation assures the defendant that the claim was preceded by a reasonable investigation,” the opinion states. “That there is a justification for the plaintiffs’ claim, i.e. that it is not a frivolous medical malpractice claim, and that the claim is legitimate.”
It also is critical of Glat’s expert testimony for Hermoso.
“It shocks the conscience that a medical expert, under oath and penalty of perjury, would assure the court there was justification for the plaintiff’s claim that the surgeon improperly placed the implants above the muscle when both the plaintiff and Dr. Altman testified the implants were, in fact, placed below the muscle,” a footnote in the opinion states.
Florida Third District Court of Appeal case number 3D24-0856 (Miami-Dade County Circuit Court case number 20-24612-CA-01)
