I’m spending the day in depositions in a pending cosmetic surgery malpractice case in the Dallas Fort Worth (DFW) area. In that case, the cosmetic surgeon was an obstetrician, not a plastic surgeon, and left the patient with permanent disfigurement and other injuries.
In this context, it seems fitting to discuss a recent opinion entered by Houston’s First Court of Appeals involving alleged cosmetic surgery malpractice where the provider was a dermatologist, rather than a surgeon. The case is styled Nikko Cosmetic Surgery Center, Inc. and Anthony Nikko, M.D. v. Carroll; No. 01-20-00752-CV, In the First Court of Appeals. You can read the opinion here.
Dr. Nikkko’s Texas Medical Board action history
Dr. Anthony Nikko graduated from medical school at the University of Texas Southwestern in 1996. He did one year of residency at Baylor College of Medicine in internal medicine, and three additional years of residency in dermatology. He’s been board certified in dermatology since 2000.
Dr. Nikko’s profile with the Texas Medical Board contains various disciplinary actions:
• 8/16/19: An agreed order for Dr. Nikko to update/correct his website advertising regarding board certification and cosmetic surgery. The Board found that his website stated that he was a “board certified cosmetic surgeon,” although he isn’t board certified in this specialty.
• 12/4/15: An agreed order requiring Dr. Nikko to take a medical jurisprudence exam. The Board found that Dr. Nikko’s website described him as a “fellow” of the American Society of Breast Surgery, when he was only a member, and as a “fellow” of the American Society of Mohs Surgery, even though he hadn’t been a member since 2006.
• 10/6/06: An agreed order arising from allegations that Dr. Nikko failed to appropriately document patient consent and/or discussion of the risks and benefits of laser treatment.
• 2/7/03: An agreed order arising from a violation of Board rules relating to false, misleading, or deceptive advertising.
In addition, Dr. Nikko reported to the Medical Board a claim for “suboptimal outcome following blepharoplasty.” Blepharoplasty is a surgery to repair droopy eyelids.
The Carroll case
In the Carroll case reviewed by the First Court of Appeals, the plaintiff/patient alleged that she visited the Nikko Cosmetic Surgery Center to have her aged breast implants removed and for a breast lift.
Before proceeding with treatment or surgery, a physician or surgeon must obtain informed consent from the patient. This involved disclosing the risks and benefits of the proposed treatment, compared with alternatives, including doing nothing. Without any consent, the physician or surgeon could face a civil claim of medical battery. Without proper informed consent, the patient could have a claim for failure to obtain informed consent.
The patient signed a consent form for a breast lift procedure, which is called a mastopexy. In the medical malpractice lawsuit, the plaintiff alleged that Dr. Nikko performed a different procedure altogether, a breast reduction procedure. Additionally, the plaintiff alleged that Dr. Nikko left the old implants in place and removed a disproportionate amount of tissue from each breast, leaving her with asymmetrical breasts.
To comply with the tort reform requirements that apply to all Texas medical malpractice claims, the plaintiff must timely produce a medical expert report from a Houston-based board-certified plastic surgeon. The expert noted that Dr. Nikko is a dermatologist who’s not medical by any surgical board and has no surgical training by any surgical program approved by the Accreditation Council for Graduate Medical Education.
Then the report stated that Dr. Nikko violated the standard of care by performing an unauthorized surgery on the patient. Additionally, the expert stated that Dr. Nikko didn’t perform the unauthorized procedure correctly, by leaving one breast disproportionately smaller than the other, which would require future surgery to correct it.
Dr. Nikko responded to the expert report by the plaintiff’s plastic surgery expert, alleging that it wasn’t detailed enough in defining the standard of care, how Dr. Nikko allegedly breached it, and how any such breaches proximately caused harm to the patient. The dermatologist defendant asked the trial court to dismiss the case.
It’s interesting to me that a big issue in the case is the fact that a dermatologist was performing surgery for which he allegedly lacked proper training. Yet, the dermatologist defendant objected to the sufficiency of the expert report of the plaintiff’s board-certified plastic surgery expert.
The Court of Appeals rejected Dr. Nikko’s objections and upheld the trial court’s order denying the motion to dismiss.
If you’ve been seriously injured because of plastic or cosmetic surgical care in Texas, then contact a top-rated experienced Texas medical malpractice lawyer for a free consultation about your potential case.
