Angelakis v. Teimourian

KRAUSER, J. Appellant, Alexandra Angelakis, and her husband, Dimitrios Angelakis, brought a medical malpractice action against appellees, Bahman Teimourian, M.D., and Suburban Hospital, Inc. The Angelakises claimed that the “ultrasound-assisted liposuction” performed by Dr. Teimourian on Mrs. Angelakis’s abdomen and thighs at Suburban Hospital had left her scarred and disfigured, as a result of appellees’ negligence. A Montgomery County jury disagreed. Finding neither the negligence nor the lack of informed consent alleged by the Angelakises, the jury returned a verdict in favor of appellees. Mrs. Angelakis then noted this appeal, 1 contending that the circuit court erred in excluding, as a subsequent remedial measure, a post-operative letter written by Dr. Teimourian to a peer review journal.

In that letter, which included a photograph of appellant’s thighs and abdomen, Teimourian warned of the risks involved in performing ultrasound-assisted liposuction too aggressively on the inner thighs and abdomen. The letter, appellant claims, should not have been excluded by the circuit court as a remedial measure but admitted as either an admission or as impeachment evidence. The circuit court’s ruling, however, was a little more nuanced than that. In what appears to have been a carefully ⁵¹¹ calculated attempt to balance competing interests of public policy and private need, the court excluded the letter itself, as appellant contends, but permitted her to introduce the photograph, published with the letter, of her post-operative abdomen and thighs and to use the letter, without referring specifically to it, to cross-examine Dr. Teimourian.

The court’s decision to exclude the letter, as a subsequent remedial measure, was initially correct. But, as the trial progressed, the propriety of that exclusion evaporated: Once Dr. Teimourian gave testimony that flatly contradicted material representations that he made in the letter, the letter was admissible as impeachment evidence. The court’s failure, at that point, to permit what it had prohibited was error. But it was harmless error, since the substance of the letter was made known to the jury through Dr. Teimourian’s testimony, and the photograph, which accompanied it, was introduced into evidence.

That made the admission of the missive de minimis. The Surgery In November 1996, appellant was informed by her gynecologist, Dr. Edward Cunningham, that she had cervical cancer. To remove the cancer, she underwent a procedure called “conization” — so named because it involves the excision of a cone of tissue. Following that operation, Dr. Cunningham recommended that she also undergo a “radical hysterectomy” to eliminate any remaining cancer cells.

She agreed to the procedure but then asked if he would also perform, at that time, a “tummy tuck,” 2 as the incision for the hysterectomy could also be used for that purpose. As he was not a plastic surgeon, Dr. Cunningham referred her to a doctor who was — Dr. Teimourian. Appellant met with Teimourian, and he agreed to perform, after the hysterectomy, ⁵¹² liposuction on her abdomen and inner thighs, as well as plastic surgery on her face, arms, and buttocks. On February 11,1997, after Dr. Cunningham completed the hysterectomy, Dr. Teimourian performed a series of surgical procedures on appellant, 3 which included traditional and ultrasound-assisted liposuction (“UAL”) on her abdomen and inner thighs.

Traditional liposuction begins with the introduction of a blunt flexible tube, known as a “cannula,” into the fatty layer of the body through an incision. The sharp edges of the cannula’s opening are then used to sheer off fatty tissue, as the cannula is passed back and forth over the area to be reduced. Because the cannula is attached to a suction device, it draws in the loose tissue as it moves back and forth. UAL reduces fatty tissue in a different way.

Instead of cutting, it emits ultrasonic sound waves to rupture cells and, in essence, melts the fat away. Unlike traditional liposuction, it generates heat and therefore has the potential to bum whatever it comes in contact with, including skin, unless used property- At the conclusion of the surgery, Dr. Teimourian closed the abdominal incision only to reopen it when he found the blood supply to that area was inadequate or, as he put it, “the capillary refill was not there.” He left the incision open, with the intention of closing it in stages to avoid skin loss. In the meantime, the incision was covered by sterile dressings and “some local antibiotic” was applied. On February 15, 1997, appellant was discharged from the hospital.

During subsequent appointments with Dr. Teimourian, fluid was drained, and dead or “necrotic” tissue was cut away from her groin and abdomen. On February 19, 1997, cultures were taken from the incision areas, which later showed evidence of a staph infection. ⁵¹³ On February 28, 1997, running a temperature of over 103 degrees, appellant went to see Dr. Teimourian. A few days later, she returned, complaining of pain in her upper thighs, groin, and abdomen. After observing “areas of necrosis and infection of the abdomen and the medial thighs,” Dr. Chester Haverback, an associate of Teimourian’s, admitted her to Holy Cross Hospital.

There, she was diagnosed with having “postoperative infections with severe cellulitis and loss of skin and subcutaneous tissue of the abdomen and both thighs.” The Letter After appellant’s surgery, Dr. Teimourian submitted a letter, with a post-operative photograph of appellant’s abdomen and thighs, to a peer review journal, Plastic and Reconstructive Surgery. In that letter, he warned against using ultrasound-assisted liposuction or “UAL” as aggressively as traditional liposuction and suggested that it should not be used on the abdomen and inner thighs. The photograph of appellant that accompanied the letter showed “skin loss” presumably resulting from the misuse of UAL. 4 The letter and photograph appeared in the November 1997 issue of Plastic and Reconstructive Surgery. Teimourian’s letter began by stating: Ultrasound-assisted liposuction has become popular in this country within the past year.

This popularity has evolved, especially, as a result of the enthusiasm on the part of the manufacturers to sell expensive equipment, and, to a certain extent, because of the endorsement of our plastic surgery society. Having used ultrasound-assisted liposuction in 150 cases, I would like to convey my observations on the use of this machine. ⁵¹⁴ It then named the medical problems associated with an aggressive use of UAL, mentioning skin loss, among other problems: In addition to the extra expense and machine dependency associated with the use of ultrasound-assisted liposuction, there are medical problems that may occur, including seroma (Fig.l), surface irregularity (Fig.2), and skin loss (Fig.3) when the procedure is done as aggressively as in traditional liposuction. (emphasis added). “Fig. 3” was a photograph of appellant’s abdomen, groin, and upper thigh area captioned, “Skin loss as evidenced by skin ulcer in both inner thighs and lower abdomen.” And then it specified the areas of the body suitable for UAL and those that were not, notably, the abdomen and inner thighs: There are some areas where I find that ultrasound-assisted liposuction is user-friendly and enhances the results of the procedure. These areas include the flank, chest roll, gynecomastia, and possibly in the treatment of obese individuals.

However, use of the machine, as we know it today, for treatment of the abdomen is controversial, and in my opinion it should not be used in the neck area, inner thighs, knee, or ankles. Ultrasound-assisted liposuction does not give any superior aesthetic result. His letter ended with the following request: I hope the task force will set forth a recommendation with regard to the judicial [sic] use of ultrasound-assisted liposuction. The Trial At trial, the Angelakises sought to show that the injuries to appellant’s abdomen and inner thighs were caused by the negligent manner in which Dr. Teimourian performed UAL.

Their medical expert, Craig Dufresne, M.D., testified that, as a result of Teimourian’s negligence in performing UAL, appellant sustained burns to her abdomen and thighs. Because ⁵¹⁵ these burns caused tissue death, they were, according to Dr. Dufresne, “a major contributing factor” to appellant’s infections and resulted in significant skin loss to her right groin, abdomen, and thighs. Disagreeing, Dr. Teimourian testified that he did not burn appellant and did not see any indication of burns after her surgery. He insisted that her “abdominal wound” infection was unrelated to the liposuction.

He further testified that, while smoking did not cause appellant’s “wounds to originate,” it interfered with the “healing process.” And he opined that “the thigh breakdown was a result of infection and gravity.” When asked on cross-examination whether UAL entails risks that traditional liposuction does not, Dr. Teimourian responded that, in his experience, he “did not see any difference as far as the danger of the ultrasound versus the traditional suction lipectomy.” In his opinion, UAL and traditional liposuction are “interchangeable.” Later, when asked whether “the proper precaution [is] not to do UAL on the abdomen or the thigh at all,” he responded that he did not see “any advantage” in using it on the inner and outer thighs. Pressed further, he added, “I don’t think it’s improper. There are many people who do it. In my experience, I don’t like to do it.” When subsequently asked if he “incorrectly performed [the] UAL procedure on Mrs. Angelakis by doing it too aggressively,” Teimourian replied, “No.” It was at this point that appellant’s counsel first sought to introduce Teimourian’s letter, specifically because of two statements in it.

The first statement, appellant argued, was an admission by Dr. Teimourian. It stated: “In addition to the extra expense and machine dependency associated with the use of ultrasound-assisted liposuction, there are medical problems that may occur, including ... skin loss (Fig.3) when the procedure is done as aggressively as in traditional liposuction.” Figure three, as noted earlier, was a photograph of appellant, captioned as “[s]kin loss as evidenced by skin ulcer in both inner ⁵¹⁶ thighs and lower abdomen”; the photograph, unlike the letter, had already, been admitted into evidence. The second statement was, according to appellant, not only admissible as an admission, but as impeachment evidence. It stated: “[U]se of the [UAL] machine, as we know it today, for treatment of the abdomen is controversial, and in.my opinion it should not be used in the neck area, inner thighs, knee, or ankles.” Appellant claimed that this statement contradicted Dr. Teimourian’s trial testimony that UAL and traditional liposuction are the same and that he did not like to perform UAL on the inner thighs.

The circuit court reserved ruling on the admissibility of the letter and allowed appellant’s counsel to continue cross-examining Dr. Teimourian without directly referring to the letter. In so doing, the circuit court noted that counsel had merely asked Dr. Teimourian about “over aggressive use” of UAL and suggested that counsel ask Dr. Teimourian “if in his opinion the result that occurred in this case was the result of using the UAL as aggressively as one would use [traditional liposuction].” Appellant’s counsel then asked: Q Dr. Teimourian, would you be able to very carefully listen to this next question and give me your answer? Do you agree that there are medical problems that may occur, including skin loss, when UAL is done as aggressively as in traditional liposuction? Yes or no.

A Yeah, I agree with that. Q You do. A Yeah. Q And in fact, you have' acknowledged that to your peers, have you not?

A Yes. I wrote a letter— After questioning Dr. Teimourian about consequences of aggressively using UAL, appellant’s counsel turned to the issue of performing UAL on the inner thighs. ⁵¹⁷ Q And earlier today, you testified that you still, although you don’t like to do it, you still do UAL in the abdomen and in the thighs, the inner thighs. A Outer thighs I said. Q All right.

Do you not do it— A I do not like to do inner thighs. Q But you do it occasionally anyway, correct? A I don’t like to do the inner thighs. I use it on outer thighs mostly now.

Q All right. Sometimes you do it on the inner thighs. A I might have done it. I don’t remember the last— Q So do you therefore take the position that UAL treatment of the abdomen is controversial, and that in your opinion it should not be used in the inner thighs at all?

A This was a— Q Is that your position, yes or no? A That was my position then. This is the— Q When? A When I wrote that article.

Dr. Teimourian then stated that he had written the letter at issue in 1997, which prompted appellant’s counsel to ask: Q In March of 1997, when you stated — without reference to any article — when you stated that medical problems may occur including skin loss when UAL is done as aggressively as in traditional liposuction, when you said that in March, did you use as an example the picture that we have been showing of Mrs. Angelakis? Yes or no. At this point, Dr. Teimourian’s counsel objected to what he believed were references to Teimourian’s letter. The court cautioned appellant’s counsel but permitted him to resume questioning.

Q Do you agree that medical problems that occurred with respect to skin loss in this case shown in that picture occurred because the procedure that you did on Mrs. Angelakis was done as aggressively as in traditional liposuction? ⁵¹⁸ A This is her picture. That is my— Q Yes or no. A I agree with that writing, there. Q Do you agree — I am not talking about the writing.

I am agree [sic] if it is your opinion, your conclusion that what is shown in that picture involving Mrs. Angelakis, the skin loss that is shown there on both the thighs and the abdomen happened because you did this procedure on her as aggressively as is done with traditional liposuction. You did this UAL procedure on her as aggressively as is done with traditional liposuction. Yes or no. A That’s yes, with qualification there are no bums.

There is not a single word that burn [sic] in that article. Appellant’s counsel again sought to introduce the letter but was again rebuffed by the circuit court. The court pointed out to counsel that Dr. Teimourian “has essentially answered all of your questions to say what he said in the article without the necessity of getting into an article that was written, and therefore getting into a good question of public policy.” The court concluded, “To now let you go on to refer to some article is unnecessary.” During subsequent cross-examination, Dr. Teimourian restated his position that there was no skin loss: Q All right. Now, Dr. Teimourian, before you had indicated that — actually, well before lunch, you said she had no skin loss in the abdomen.

A I still say that. Q And yet a little later before lunch, you said that the skin loss that she sustained in the abdomen and both thighs, from the UAL procedure, was caused by your doing the UAL as aggressively as one would do it with standard liposuction, didn’t you? A The thigh — no, I didn’t. Q All right— A I said the abdominal area was left open on purpose.

Whenever you do the UAL and the suction lipectomy, which ⁵¹⁹ was done in combination on Mrs. Angelakis, or if you do the suction lipectomy alone, without UAL, if the skin of the umbilicus doesn’t reach the pubic area, you leave it open. A Abdominal incision was left open on purpose. In light of that testimony, appellant once again moved for the admission of the letter, and the court once again denied that request. Later Dr. Teimourian again testified on cross-examination that there was no skin loss to appellant’s abdomen, whereupon appellant’s counsel again sought to impeach Dr. Teimourian with the letter’s assertion that skin loss can result from using UAL as aggressively as traditional liposuction, as that assertion was referring to a photograph of appellant’s thighs and abdomen.

Declining again to admit the letter, the circuit court stated in part: “I’m convinced ... you’ve gotten just about everything that was said in that letter through the mouth of the witness, and you’ve got it in writing. Now, if he says some different things when his lawyer’s talking to him, fine. You can use all of the inconsistencies in your final argument that you can find.” The court further noted that “to put that letter in, which is — was clearly intended as, you know, advice to other folks, possibly even a change in his own practice based on what he saw ... and I’m going to so rule.” Discussion Appellant contends that the circuit court erred by excluding the letter as a subsequent remedial measure. The letter, appellant maintains, was not a remedial measure, and was admissible as an admission.

Moreover, even if it was a remedial measure, appellant argues, the circuit court should have admitted it as impeachment evidence, once Teimourian gave contrary testimony. To determine the law of the letter, we begin with the letter of the law. Maryland Rule 5-407 governs the admissibility of subsequent remedial measures. It provides: ⁵²⁰ (a) In general.

When, after an event, measures are taken which, if in effect at the time of the event, would have madé the event less likely to occur, evidence of the subsequent measures is not admissible to