Med-Mal Case Includes Rare Punitive Damages Claim

A Fort Lauderdale, Fla., man, who is suing two Broward County doctors for malpractice in a rare case allowing a punitive damages claim contends one of his surgeons "left me on the table unconscious to be mutilated" by the other doctor.

Thomas Glasson, a former lawyer, claims his plastic surgeon later lied about his detached role in the botched surgery, created two sets of medical records to hide the truth and still billed his insurance company for performing surgery.

Attorney Spencer Aronfeld of Aronfeld & Associates of Coral Gables, Fla., who represents Glasson, said the punitive damages option is unusual in Florida and nationally. Broward Circuit Judge Peter Weinstein issued an order in July putting punitive damages in play, and Florida's 4th District Court of Appeal on Sept. 29 denied a petition for a writ of certiorari on the issue. The trial is set for March 2.

"We're unaware of any other case in the country where a patient has been allowed to allege -- against a physician in a plastic surgery case -- punitive damages for an intentional tort," Aronfeld said.

Glasson is suing Pembroke Pines, Fla., surgeon Jason Frost and Hollywood, Fla., plastic surgeon Jonathan Weiser after an operation to remove small growths under Glasson's enlarged breasts ended with the complete removal of both breasts, leaving Glasson's chest disfigured.

Medical malpractice attorney Gary Cohen of Grossman Roth in Boca Raton, Fla., who is not involved in the case, called the option of punitive damages "exceedingly rare." He said he has been allowed to request punitives only twice in dozens of malpractice cases. Obtaining permission to add punitive damages means the alleged misconduct "was well over and above the normal malpractice."

Normally, patients who win malpractice cases are allowed to seek only compensatory damages covering medical expenses, lost pay and pain and suffering.

Punitive damages are intended to punish wrongdoers and deter others. They are not covered by a doctor's malpractice insurance, are not subject to a statutory cap and are based on a defendant's net worth.

The medical defense bar "would do everything possible I think to prevent this from becoming more common because it exposes their client to personal financial responsibility," Aronfeld said.

He said he has been contacted by lawyers across the country about Glasson's case and has been asked to speak at the Florida Justice Association winter seminar in Beaver Creek, Colo., this month on the subject of how to get punitive damages in a medical malpractice case.

The allowance for punitive damages means the judge was convinced the claimed malpractice rose to a level of reckless disregard for human life and safety and suggested an intentional act, said veteran Miami medical malpractice attorney Stuart Ratzan of Ratzan & Rubio, a former co-chair of the Florida Justice Association's medical malpractice section who is not involved in the case.

Attorney Amy Talisman of the Davie, Fla., firm Chimpoulis & Hunter, who represents Frost, disagreed with the judge's order allowing punitive damages.

"I don't think it does rise to that level," she said. "You have to take what Mr. Glasson says with a grain of salt. It's a case that we're vigorously defending."

Talisman said trial evidence will show Glasson has credibility issues. He lost his law license in Illinois in 2001 for taking $8,700 from his law firm to buy cocaine and after pleading guilty to passing 29 bad checks worth $2,881, according to the Illinois State Bar Association Web site.

Talisman also said she has a letter from Frost to Glasson telling him the surgery would produce chest indentations, and Glasson "ended up with exactly the end result that he was told he would end up with." Glasson, 44, now works as a paralegal in a Fort Lauderdale law firm. Glasson, who is openly gay, said his law license was suspended in Illinois for 18 months in 2000 and he has not asked for reinstatement. He acknowledged "a struggle with drugs and alcohol" and said he is "in recovery" from his addictions.

Weiser's attorney, Lee Cohen of the West Palm Beach, Fla., office of Cole Scott & Kissane, said his client acted appropriately.

"Dr. Weiser denies the allegation and doesn't believe that punitive damages will be something that a jury finds in this case," Cohen said.

Frost performed a bilateral mastectomy on Glasson in 2004 after doctors said they detected a small mass under each nipple, and Frost consulted Weiser before surgery, an amended complaint said.

Weiser was supposed to work with Frost during the operation "to provide an acceptable cosmetic result" after the masses were removed, the complaint said. Weiser was present for part of the surgery but did not participate and billed Glasson's insurance company for performing the surgery with Frost.

"This was a calculated conspiracy by these two physicians to defraud Mr. Glasson's insurance," Aronfeld said in an interview.

After Glasson sued, the complaint said, "Weiser materially altered both the hospital records and his office records in an attempt to conceal his misconduct and liability."

The doctor destroyed his hard drive with Glasson's records, and a nurse in his office discarded it in a commercial garbage bin in Davie, Aronfeld said.

Weiser "personally marked Glasson's chest" for incisions and discussed the procedure with Frost as the surgery began, but he "never bothered to scrub for the procedure. Instead he went out for coffee," the complaint said.

"After stopping in to view the surgery and observing that Dr. Frost had performed the wrong procedure on one breast, Dr. Weiser simply returned to his office" without intervening, the complaint said. "As a result, Dr. Frost performed the wrong procedure on Glasson's other side as well."

Glasson would not have agreed to surgery if he knew only Frost would be performing the operation, the complaint said. Frost "negligently removed excessive tissue, causing significant, irreparable chest wall deformities."

Weiser's actions fell below the standard for acceptable care by failing to order the biopsy, adequately warn Glasson of the surgical risks and alternatives, participate in the surgery, advise Frost that he was performing the wrong procedure and provide promised reconstructive surgery, the complaint said.