Plastic Surgeons vs. The Maufacturers

The Next Stop for Plastic Surgeons Will be Bankruptcy Court

The next stop for 200 plastic surgeons from Pennsylvania in their case against Dow Corning will be bankruptcy court. After having met the January 15 deadline for filing proofs of claim in the Dow Corning bankruptcy, they moved for permission to file a class wide proof of claim and for class certification. The Committee for Tort Claimants and the Committee Representing Unsecured Creditors joined the defendant Dow Corning in objecting to the motion. A hearing before Bankruptcy Judge Arthur Spector is scheduled for April 14, 1997.

The lawsuit, Hurwitz,et. al. vs. Dow Corning, Inc. et. al, was originally filed in July 1994 in Philadelphia Common Pleas Courts against Dow Corning, Baxter International, Bristol-Myers Squibb, and Minnesota Mining and Manufacturing Corp. The Class is defined as "All persons licensed by the Commonwealth of Pennsylvania as medical doctors who have also demonstrated learned methods and proficiency in the medical specialty of plastic and reconstructive surgery, as demonstrated by certification by the American Board of Plastic Surgeons, a credentialing body; and have performed breast reconstructive or cosmetic surgery on women in Pennsylvania since 1975, utilizing silicone gel implant devises manufactured or sold by one or more of the defendant class members..."

The lawsuit alleges counts for :
*negligence and gross negligence in:

(a) failing to warn the plaintiff and members of the class concerning the potential health risks of silicone gel;
(b) failing to disclose to the medical community, including the plaintiff class, that silicone gel may not be inert and thereby stimulate the auto immune system as an "adjuvant";
(c) failing to test and study the devices both prior to and subsequent to their being placed on the market;
(d) permitting the dissemination of misleading advertising with respect to the implants:
*negligence per se for the violation of the Pennsylvania Controlled Substance Drug, Device and Cosmetic Act;
1. *breach of duty to warn;
2. *fraud and misrepresentation'
3. *breach of implied warranty for a particular purpose'
4. *breach of express warranty''
5. *liability pursuant to Sec. 876 of Restatement (2d) of Torts; and
6. *fraudulent concealment.

The crux of the lawsuit is simply that these leading implant manufacturers failed to inform the physicians of the potential risks of the implants "We were led to believe that these devices were safe for our patients,"says Dr. Mark Solomon, a board certified reconstructive plastic surgeon and active member of the class. "Our confidence in these products soared...we wholeheartedly believed that we were doing right by our patients. Had we known that the raw materials used in breast implants were the same materials used to waterproof the electronic parts in submarines, we would have thought twice before recommending them for implantation in humans. Our patients are not the only victims of the defendants' actions. Now we, too are paying the price."

Paying the price in this case means defending thousands of medical malpractice lawsuits alleging lack of informed consent, filed in the Commonwealth of Pennsylvania by trusting patients who looked to their physicians for all of the facts. As a result of the morass of malpractice litigation against these well-meaning surgeons, these class members have expended exorbitant legal fees in order to defend these lawsuits. Thus, they have been further damaged because it is likely that many, if not all, of these surgeons have inadequate malpractice insurance coverage to cope with the number of current lawsuits, as well as future malpractice claims that will undoubtedly arise. The class is seeking $200 million in damages and is represented by the firm of Lawrence E. Feldman & Associate, in Elkins Park, Pa.

RefL Medical & Legal Aspects of Breast Implants, March 1997, posted by Janet Van Winkle, American Silicone Implant Survivors, Inc. (AS-IS), Member of Board of Editors.