NEWS YOU SHOULD KNOW: MALPRACTICE LAWSUIT INVOLVING DELEGATION OF FUE
GENEVA, IL. – April 7, 2019
Summary of Stephen McGlinn vs Chaffoo, Case No. 37-2017-00011463-CU-MM-CTL
By: Robert M. Portman, JD and Megan La Suer, JD, MHA
A surgical hair restoration procedure using follicular unit excision (FUE) technique, also (previously) known as follicular unit extraction, performed by unlicensed technicians using a NeoGraft device has resulted in a lawsuit that highlights the risks of this hair transplant procedure. The lawsuit was filed in 2017 in the Superior Court of the State of California, County of San Diego, by the patient, Stephen McGlinn, against Dr. Richard Chaffoo, MD, alleging medical malpractice in relation to the performance of the procedure. This lawsuit highlights issues and concerns regarding the NeoGraft device being used to perform an FUE extraction, particularly if performed by an individual who is unlicensed, unqualified, and whose scope of practice does not include surgery.
Mr. McGlinn visited Dr. Chaffoo for a consultation after seeing Dr. Chaffoo’s in-flight advertisement for the “NeoGraft procedure.” The complaint alleges that the advertisement did not explain that the NeoGraft procedure was used for follicular unit extractions. McGinn further alleges that the advertisement failed to disclose whether the pictures were models or actual patients of Dr. Chaffoo who underwent the procedure, creating false expectations of success on Mr. McGlinn’s part.
Two months later in June 2015, Mr. McGlinn received an FUE hair transplant procedure with a NeoGraft device performed by two of Dr. Chaffoo’s office technicians. One technician, a registered nurse, allegedly had four years of training under Dr. Chaffoo on the NeoGraft device, in addition to three decades of prior experience on robotic hair restoration techniques. The other technician was a “Neografter,” who was assigned to Dr. Chaffoo’s clinic through a placement agency. Court documents make no mention of Dr. Chaffoo ever participating in Mr. McGlinn’s procedure.
After seeing poor results in hair growth and restoration, Mr. McGlinn obtained a second opinion from Dr. Kenneth Williams, a specialist in the treatment of hair loss disorders and hair restoration surgery. Dr. Williams informed Mr. McGlinn that his hair transplant had failed, due to the “actionable negligence” of Dr. Chaffoo and his staff. Dr. Williams contends that Mr. McGlinn’s alleged injuries are due to an improper initial examination, improper surgical planning, and failure to provide sufficient information in order to provide an adequate informed consent.
Mr. McGlinn filed a lawsuit in March 2017, alleging that the hair transplant procedure was “performed in a manner below the acceptable standard or standards of medical practice.” Mr. McGlinn’s alleged injuries include, among other things, hair deformation, scarring, growth failure, psychological trauma, and monetary damages. Dr. Chaffoo responded that these are commonly known risks of this type of hair transplant procedure.
In a case of medical malpractice, liability turns on three elements: existence of a duty owed to the plaintiff, breach of that duty by the defendant, and proof that the breach was the proximate cause of the plaintiff’s alleged injuries. A plaintiff can only recover if all three of these elements are proved by a preponderance of the evidence. In California, the court will look to the actual professional standard, defined by actual or accepted practice within a certain profession, to determine whether a physician breached the duty owed to the patient. This professional standard can only be established by expert testimony. Both parties have submitted expert declarations by physicians specializing in hair transplant procedures. Most notably, the expert witness called by Dr. Chaffoo is Dr. Grant Stevens, a featured physician on NeoGraft’s website.
Dr. Williams submitted a declaration on behalf of Mr. McGlinn stating that the standard of care in hair restoration surgery requires that the operating surgeon be physically present during surgery in order to perform the critical-to-quality steps (CTQS) of the hair transplant procedure, which are essential for a positive surgical outcome. Dr. Williams notes that the technicians who performed the CTQS, administered the anesthesia, and performed the actual procedure were not licensed to do so. Furthermore, these technicians were required to be under the direct supervision of Dr. Chaffoo during the entire procedure. Dr. Williams concludes that because Dr. Chaffoo was not present and the technicians were not properly qualified, that the placement of grafts and creation of recipient sites in Mr. McGlinn’s scalp were poorly designed and executed, resulting in a failed surgery.
Mr. McGlinn was enticed by an allegedly false and misleading advertisement that created unrealistic expectations for hair restoration success. Although Mr. McGlinn signed an informed consent document prior to the procedure, he alleges that the document did not provide, nor did Dr. Chaffoo or his staff explain, the relevant information for Mr. McGlinn to fully understand the procedure, the possible alternatives, or post-operative expectations based on his advanced pattern of hair loss and limited donor hair supply, thus nullifying his ability to provide informed consent.
Dr. Chaffoo recently filed a motion for summary judgment in an effort to dismiss the case prior to trial. The motion stipulates that Mr. McGlinn failed to raise a triable issue of material fact, failed to show how either Dr. Chaffoo or his staff breached the applicable standard of care, and that there is no causal connection between Mr. McGlinn’s alleged injuries and the actions of Dr. Chaffoo or his staff. Dr. Chaffoo claimed that Mr. McGlinn’s injuries are due to his own negligent actions, that Mr. McGlinn was fully informed regarding the procedure and outcomes, and that Mr. McGlinn voluntarily and expressly assumed all risks of the procedure.
Motions for summary judgment are generally not successful in cases, such as this one, where there are disputed facts. Rather, the case is likely to go to trial if it does not settle. We will continue to monitor this litigation and provide updates on any significant new developments.
Robert M. Portman, JD and Megan La Suer, JD, MHA are health care attorneys with Powers Pyles Sutter & Verville PC in Washington, DC, USA