Appeals court overturns verdict against plastic surgeon

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Appeals court overturns verdict against plastic surgeon

http://www.siouxcityjournal.com/articles/2006/09/22/news/iowa/dd5e031fdb8df2d4862571f10014fae8.txt

DES MOINES, Iowa (AP) -- A Des Moines plastic surgeon won a new trial on Thursday from the Iowa Court of Appeals, which ruled that a lower court shouldn't have admitted a television news report, which advised against a breast reconstruction procedure for women who have had radiation treatments.

Jimmy McVay, who had undergone radiation treatment, filed a malpractice lawsuit against Dr. S. Bergman after watching him on the WHO-TV news.McVay met with Bergman in early 2000 and underwent a three-phase breast reconstruction procedure in 2000 and 2001. She later developed an infection which required the removal of a breast implant, resulted in skin loss and required skin grafting, court documents said.

McVay claimed Bergman erred in recommending the surgery for her. She said that given her history of chemotherapy, radiation, and cigarette smoking, the three-stage surgery was not appropriate for her because it carried a higher risk of infection.

McVay had smoked a pack of cigarettes a day for about 26 years and continued to smoke after the mastectomy.Bergman testified the operation was appropriate for her.Conflicting expert testimony was presented at the trial, court documents said.

McVay testified at trial that she filed the lawsuit after seeing the videotaped segment on the WHO television news, which she said featured Bergman explaining that women who have had radiation treatments should not have three-stage breast reconstruction.

The videotape was admitted as evidence at the trial.Bergman claimed it was prejudicial and should not have been admitted. He sought dismissal of the case, which was denied by Polk County District Court Judge A. Romano.

He appealed the decision.The appeals court ruled that the videotape should not have been admitted into evidence.In the tape, Bergman did not make the statement about the surgery as it relates to patients and radiation treatments. Instead, it was the news reporter, Prichard, who made the statement.

The appeals court said there was no proof that Bergman, who appeared in parts of the story, agreed with or supported the statement. " There is insufficient evidence to show Dr. Bergman manifested an adoption or belief in the truth of the statement, or that he authorized Prichard to make the statement, the appeals court wrote. " The district court, over defendant's timely objection, erroneously considered Prichard's statement as an admission against Dr. Bergman's interest. "

The court ruled that the admission of the videotape " did not serve the interests of justice or the general purposes of the rules of evidence. " Bergman also claimed the $750,000 jury verdict was excessive, but the appeals court said since it concluded a new trial is necessary, it did not need to weigh in on whether the verdict was too much.

Judge Daryl L. Hecht disagreed with the decision and filed a dissenting opinion, which said the videotape should be allowed as evidence. " A reasonable person could conclude, as the district court did, that Bergman associated himself with and adopted the reporter's statement, " he wrote.

On the amount of the verdict, Hecht said: " Although the verdict is substantial in amount, I cannot say on this record that it was clearly the result of passion or prejudice. Accordingly, this court should not substitute its judgment for that of the jury. "

On the Net: Iowa Court of Appeals: http://www.judicial.state.ia.us/Court--of--Appeals