Hugh v. Ofodile

Plaintiff, then age 38 and weighing 380 pounds, underwent gastric bypass surgery, ultimately losing 200 pounds. After the surgery, she had excess skin on her abdomen, buttocks, and thighs, which caused considerable discomfort from chafing and difficulty walking, and she sought surgery to remove the excess skin from her thighs. Plaintiff consulted with several plastic and reconstructive surgeons. She rejected recommended full body lift surgery because it was too invasive, but was interested in a procedure known as the medial thigh lift. Two surgeons with whom plaintiff consulted in 2003, however, told her that the latter procedure carried a risk of vaginal widening and labial stretching. Plaintiff rejected the medial thigh lift because of that risk. In 2005, she consulted defendant, who she claims indicated that he would perform a lateral thigh lift, making incisions on the outside of her thighs, which would not cause vaginal widening or the flattening of the labia majora often incidental to a medial thigh lift. Plaintiff acknowledged that de [509] fendant told her of such risks of surgery as lung collapse, thrombosis, and infection, but claimed that he did not inform her of the risk of vaginal widening or labial distortion. Defendant ended up performing a medial thigh lift because plaintiff had so much loose skin. Plaintiff was left with flattening of the labia majora and some scarring as a result of wound breakdown. She did not complain to defendant concerning her condition or the type of surgery that had been performed, stating afterward, “He already cut me there. At that time I just, I — I couldn’t believe it. I just — I just said okay.” Defendant disputed plaintiffs claim that he did not tell her of the possibility of vaginal widening and labial change incident to his performing a medial thigh lift, which he might have to perform to remove the excess skin from her inner thighs. However, defendant’s notes indicate merely that patient “wants thigh lift” and “[needs T-type skin excision” and “understands that skin will stretch and may meloid.” The consent form that plaintiff signed did not mention a medial thigh lift or say anything about vaginal widening or labial distortion. Plaintiff also testified that, on the day of surgery, defendant marked only the outside of her hips; defendant testified that he performed the surgery in accordance with the markings he had made before it. Defendant testified that, in his opinion, plaintiffs vagina was “essentially” the same both before and after the surgery, without widening, and was within the normal limits, although the shape was slightly different. Plaintiffs claims are based on lack of informed consent and deviation from good and accepted medical practice. As to the lack of informed consent, she avers that she would not have undergone the thigh lift had she known that defendant was going to perform a medial lift, which she knew carried the risk of the vaginal condition from which she now suffers. Although plaintiff’s expert admitted that this was the most common surgery for a thigh lift, the jury was within its right to credit plaintiff’s testimony that she would not have undergone the procedure and to conclude that a reasonable person in plaintiffs position would not have consented to or undergone the procedure had she been properly informed. This Court has held that expert testimony concerning what a reasonable person would have done is not necessary to prosecute a lack of informed consent claim (see Andersen v Delaney, 269 AD2d 193 [2000]; Osorio v Brauner, 242 AD2d 511 [1997], lv denied 91 NY2d 813 [1998]). The jury had the right to disbelieve defendant’s claim that he had properly warned plaintiff. As to the claim based on a departure from good and accepted [510] medical practice, plaintiffs expert testified that the degree of scarring and flattening showed that defendant removed too much tissue, although the expert acknowledged that such a result could have occurred without any departure. The jury found in plaintiffs favor on both the lack of informed consent claim and the departure claim. In effect, it found that a reasonable person properly informed would not have undergone the surgery. It apparently rejected defendant’s expert’s conclusion that wound breakdown, caused at least in part by plaintiff’s own actions following surgery, was responsible for some of the scarring and altered appearance of the labia. Although the evidence of a departure was not overwhelming, the jury’s conclusion does not mandate reversal. A jury verdict should not be set aside unless it could not have been reached on any fair interpretation of the evidence (Nicastro v Park, 113 AD2d 129 [1985]). With respect to damages, plaintiff testified that she commenced a sexual relationship after the surgery at issue but sometimes experiences discomfort during sexual relations. Plaintiff also had complaints of a bladder and yeast infection and uterine prolapse, which led to a referral to Dr. Christina Kwon, a urogynecologist. Dr. Kwon examined plaintiff on three occasions in the period 2006 through 2009 and noted on each occasion that plaintiff had normal external genitalia. At her 2006 visit to Dr. Kwon, plaintiff filled out a form indicating that she had a satisfactory, and usually pain-free, sexual relationship. Dr. Margaret Nachtigall, plaintiff’s former gynecologist, testified that the appearance of plaintiff’s labia post surgery was not normal, in that the labia appeared to be flush with the thighs. Her records however, only note scarring and do not note an abnormal appearance of the genitalia. Moreover, no physician linked any pain during sexual relations or the bladder infections to the thigh lift surgery. Nor did any physician report vaginal widening. The trial court did not dismiss the claim for vaginal or labial pain although it told plaintiff’s counsel that “[t]here really isn’t much on that and I’ll assume that it will play a very small role in your damages claim.” In fact, there wasn’t any expert testimony at all relating to physical pain other than some tightness during sexual relations, and that claim for damages therefor should have been limited. Plaintiffs claims for emotional pain as a result of the surgery remain, although it is noted that plaintiff suffered from significant depression before the surgery. However, the dissent’s characterization of the photos of plaintiffs labia as showing a complete distortion is at best extremely subjective and not supported by the record. We find that the reduced damages award is excessive to the [511] extent indicated, since it deviates materially from what would be reasonable compensation under the circumstances (see L.S. v Harouche, 260 AD2d 250 [1999] [where record on appeal shows an 18 year old underwent labial surgery resulting in injuries much more serious than those of the instant plaintiff, and this Court sustained reduced verdict of $1,750,000]; Rabinowitz v Elimian, 55 AD3d 813 [2008] [sustaining an award of $750,000 to plaintiff and her husband where the record shows that plaintiff sustained a complete disintegration of her sphincter muscle leading to bowel incontinence]; Sutch v Yarinsky, 292 AD2d 715 [2002]; Beverly H. v Jewish Hosp. & Med. Ctr. of Brooklyn, 135 AD2d 497, 497-498 [1987]). In these cases, the plaintiffs sustained injuries much more severe than those sustained by the instant plaintiff. Concur — Tom, J.E, Moskowitz and Freedman, JJ.