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In 1980, a son was born to a couple in Clinton County, New York

In 1980, a son was born to a couple in Clinton County, New York. The baby boy was born with a port wine stain on his face. A port wine stain is a reddish colored birthmark they are natural, and can occur anywhere on a child’s body. They are most often at the back of the neck or upper shoulders of babies. When they occur on the back of the neck or upper shoulders, they are often referred to as stork bites. These birth marks usually include an increase in vascular supply to that area.

In 1993, the parents of the child took him to see a plastic surgeon to inquire about the possibility of removing the birthmark. The doctor advised that he could remove the birthmark from the boy’s face with an instrument called an argon laser. The doctor did not tell the parents that there was the possibility of scarring from using the laser to remove the mark. The doctor was aware that children in the boy’s age group frequently experienced hypertrophic scarring as a side effect of argon laser removal of port wine stain birthmarks. The company that manufactured the machine placed a warning in their 1992 user’s manual about the risk of scarring. However, the hospital where the machine was located had not updated their manual for the machine. They still had a 1987 manual, which did not contain the warning about scarring children with port wine stains.

The doctor who performed the procedure stated that he was familiar with the risk and chose not to tell the parents. The court determined that the hospital and the company that manufactured the machine were both free from liability in this case. The hospital was relieved of liability because the plastic surgeon who performed the procedure had hospital privileges, but was not on staff at the hospital. The manufacturer of the machine was relieved of liability based on the fact that the updated user’s manual contained the warning about scarring.

The question of liability as it relates to the doctor stands. It is the fact that he is a learned intermediary who should have known and in fact did know that the use of an argon laser to remove port wine stains in children posed a very real risk of permanent scarring. In order for the company which produced the argon laser to be held responsible, the parents must be able to prove that the failure of the manufacturer to warn the doctor was a proximate cause of the scarring that occurred. However, when the doctor who is using the machine made in Long Island has full knowledge of the potential to scar and uses it anyway, it is considered an intervening event that takes away the liability that would normally be carried by the company that built the machine.

The evidence produced at trial in Manhattan confirmed that the doctor was concerned enough about the potential risk of scarring that he performed two different mini tests called patch tests to see if the areas would scar badly. He determined that the risk of scarring was not as severe as it turned out to be. The doctor further testified that he would not have chosen the argon laser as his first choice for performing the removal of a port wine stain because of the risk of scarring involved in its use. The case does not explain why the argon laser was used in spite of the surgeon’s reticence to use it. It is further inexplicable that the surgeon was concerned enough to perform two patch tests, but still went ahead and used the device on the child’s face. His own testimony proved that he was fully aware of the potential for scarring the child’s face if he used the device. However, he did use the device and the child was scarred. The court determined that the doctor should hold sole liability for the medical malpractice and that the case should go to trial.

At Stephen Bilkis & Associates their medical malpractice lawyers, have convenient offices throughout New York and Metropolitan area. Our birth injury Attorneys can provide you with advice to guide you through difficult situations.

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