Lynn G. v. Hugo

OPINION OF THE COURT Rosenberger, J. P. Plaintiff Lynn G. brought, the instant malpractice action against her former plastic surgeon, Dr. Norman Hugo, based upon two abdominal plastic surgeries performed by Dr. Hugo in February and November 1993. On February 9, 1993, Dr. Hugo performed a liposuction of the abdomen, flanks, thighs and knees, and a bilateral mastopexy, followed by an inner thigh liposuction and a full abdominoplasty on November 9, 1993. Prior to these operations, Mrs. G had had nearly 50 professional visits with Dr. Hugo, and had undergone a wide range of elective procedures, including eyelid surgery, facial liposuctions, removal of skin growths, wrinkle removal and tattoos on her eyebrows. After the November 1993 procedure, Mrs. G expressed dissatisfaction with the appearance of her abdomen, claiming that there was unsightly scarring. She brought this action alleging medical malpractice based on a failure to obtain informed consent. First, she alleged that Dr. Hugo failed to advise her of less invasive alternatives to a full abdominoplasty, particularly since she had already had significant liposuction in that area just a few months previously. Second, she alleged that she was incapable of giving informed consent because she had Body Dysmorphic Disorder, which is the clinical name for a disproportionate preoccupation with minor or imaginary physical flaws. Between 1986 and 1990, Mrs. G had been under the care of a psychiatrist, Dr. Freiman, for depression. Dr. Hugo was aware that Mrs. G had been taking Elavil and Prozac while being treated by Dr. Freiman. Mrs. G claimed that her psychiatric history, combined with her unusually high demand for surgical correction of slight or imagined defects, should have alerted Dr. Hugo to the presence of a mental disorder that fueled her demand for unnecessary surgery and prevented her from assessing the risks and benefits of such surgery. At the very least, she contended, he should have consulted with a mental health professional before performing another invasive procedure on her. — 40 — The IAS Court properly denied defendant’s motion for summary judgment, as there exist triable issues concerning plaintiff’s alleged lack of informed consent to the abdominal cosmetic surgery performed in February and November 1993. First, the record reveals a factual dispute over whether Dr. Hugo departed from good medical practice by not advising Mrs. G of less invasive alternatives to the abdominoplasties he performed (see, Andreach v Mount Sinai Med. Ctr., 253 AD2d 397). Public Health Law § 2805-d (1) states: “Lack of informed consent means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable * * * practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.” Dr. Hugo admitted that after Mrs. G was dissatisfied with the February 1993 surgery, he never discussed any options other than a mini or full abdominoplasty for the November 1993 operation. This is confirmed by Mrs. G’s deposition testimony. However, the affidavit from Mrs. G’s plastic surgery expert opines that Dr. Hugo should have suggested a suction-assisted lipectomy as a less invasive alternative. This itself is sufficient to raise a triable issue (see, Andersen v Delaney, 269 AD2d 193; Lowery v Hise, 202 AD2d 948, 949). The dissent emphasizes that Dr. Hugo did not pressure Mrs. G into any course of action, but lack of informed consent can also be predicated on the doctor’s failure to disclose a complete range of options (Eppel v Fredericks, 203 AD2d 152). A patient cannot accurately assess the risks and benefits of a procedure if she mistakenly believes that the only alternative is inaction. The benefits to be derived from the procedure may appear greater, or the risks more worthwhile, than they would appear if she knew that there was a way to achieve a similar benefit with less risk. Nothing in Public Health Law § 2805-d (1), nor in the case law applying the statute, suggests that elective cosmetic surgery is subject to a less stringent disclosure standard (see, Lee-Lu Pan v Shaw, 203 AD2d 195; Bellier v Bazan, 124 Misc 2d 1055). Though the patient’s identification of the problem (e.g., a sagging stomach) may be motivated by subjective vanity rather than objective physical impairment, once the patient has decided that this feature is a problem that needs to be corrected, the doctor should have no less of a duty to disclose the risks of any treatment he could offer; In other words, while the — 41 — patient’s dissatisfaction with her body may be a matter of taste, the choice of treatments and the expected outcomes are governed by objective medical principles. Disclosure of less invasive alternatives is merely one aspect of the doctor’s general duty to present a full picture of the risks and benefits. With respect to the “combination” of liposuction and abdominoplasty, the dissent reads “combination” to be synonymous with “simultaneous.” They allege that plaintiffs plastic surgery expert misreads the record in speaking of the combination of procedures. The words “combination” and “simultaneous” do not have the same meaning in this context, as they do not in most contexts. In recent years, most of us have had the unfortunate experience of knowing, or at least reading of, people who have suffered with cancer. It is also common knowledge that cancer is often treated by a combination of radiation, chemotherapy, and surgery. It is also common knowledge that each of these therapeutic modalities is not performed simultaneously with the others. Nor did plaintiffs expert in this case say or suggest that the two modalities in this case were performed simultaneously. His statement that “significant truncal liposuctions should not be combined with classic abdominoplasty” is properly read as a statement of opinion that abdominoplasty presents more complications for a patient who has recently had extensive liposuction on the same part of the body. It is irrelevant that Dr. Hugo was not the only plastic surgeon who treated Mrs. G during her lifetime. He was the only one she consulted about the particular procedures complained of here. The responsibility of informing her about all her treatment options rested in his hands alone. Further factual questions regarding informed consent are presented by Mrs. G’s allegation that she suffered from Body Dysmorphic Disorder (BDD) and that Dr. Hugo should have made further inquiries into her mental state before proceeding with the abdominoplasties. The dissent misleadingly exaggerates Mrs. G’s position. She is not arguing that her depression made her incapable of entering into a contract, nor that BDD renders a person unable to give informed consent to surgery in general. Nowhere is it urged that this Court should impose a general rule requiring preoperative psychiatric referral of all plastic surgery candidates, or even of all such candidates who have taken antidepressants. She merely claims that her mental state affected her ability to assess the risks and benefits of one particular type of treatment, namely, elective cosmetic surgery, — 42 — because persons with this disorder have irrationally exaggerated perceptions of their bodily imperfections. Particularly in the area of cosmetic surgery, when there is no medical need for the operation and only the patient’s subjective aesthetic opinion determines her view of whether surgery is to be undertaken, a physician should have some responsibility to provide objective guidance to a patient whose capacity for self-assessment is clearly disordered. Dr. Hugo’s self-confessed approach is to present patients with the options and let them decide whether to undergo a procedure, but not to advise them whether one procedure is better than another or better than doing nothing at all. This laissezfaire attitude may not be sufficient, however, when the patient’s judgment appears to be impaired. On the medical questionnaires Mrs. G filled out prior to her cosmetic surgery treatments, she not only disclosed that she was using the antidepressant Prozac (and had used Elavil before that), but also indicated that she suffered from “extreme nervousness or anxiety” and had previously been taking prescription medication for migraines. Her history of depression was also noted on Columbia Presbyterian’s November 4, 1993 preoperative report, which was attached to her consent form for the November 9, 1993 abdominoplasty. When this history is coupled with Mrs. G’s extraordinary eagerness for surgical alteration — a nose reconstruction by a previous surgeon, followed by 51 visits to Dr. Hugo over a six-year period, including three facial liposuctions, eyelid surgery, pigment tattooed onto her eyebrows, and periodic injections of fat and Botox (botulism toxin) to smooth out facial wrinkles — it raises, at the very least, an issue as to whether Dr. Hugo should have sought advice from a mental health professional before performing more and more invasive procedures upon Mrs. G. Indeed, Dr. Hugo’s deposition reveals an almost complete lack of curiosity about his patient’s mental state. He testified that Mrs. G mentioned to him that she was taking Prozac. He characterized this as a “mood elevator,” but he apparently asked no follow-up questions. This was his only conversation with her about her antidepressant medication. When she first came to him, she had been using Elavil, another antidepressant, but Dr. Hugo had gathered no further information because “it did not seem as if it was worthy of being pursued.” He never endeavored to discover the dosage, length of use, or symptoms giving rise to his patient’s use of antidepressants. Lastly, he testified that he had never even heard of Body Dysmorphic Disorder. This is a disturbing confession of — 43 — ignorance from a doctor who said he was a professor at Columbia University’s medical school teaching hospital and the chief of the plastic surgery division of its hospital, Columbia-Presbyterian, particularly since Columbia-Presbyterian had a BDD clinic when Mrs. G was his patient (see, Sherman, Do I Look Fat?, New York Newsday, June 5, 1993, section II, at 17). One might expect a plastic surgeon to be cognizant of an established psychiatric condition that affects body image and could impair a patient’s ability properly to appraise and consent to cosmetic surgery. According to the dissent, even if Dr. Hugo had referred Mrs. G to a psychiatrist, such a step would have been futile because she had already disregarded the opinion of her former psychiatrist, Dr. Freiman, that she should stop having so much surgery. This cursory analysis sidesteps an important component of her claim, namely, that Dr. Hugo should have consulted a mental health professional for advice about how to proceed, or otherwise attempted to explore his patient’s psychiatric history, once her behavior raised warning signals that her judgment was impaired (see, Ross v Community Gen. Hosp., 150 AD2d 838, 840-841 [physician’s negligent failure to request accurate information from radiologist]). Plaintiffs expert physicians, a plastic surgeon and a psychiatrist, expressed the opinion that failure to make such an independent investigation was a negligent departure from acceptable medical practice, given Mrs. G’s behavior. This raises an issue of fact sufficient to withstand summary judgment (see, Slaybough v Nathan Littauer Hosp., 202 AD2d 773, lv dismissed 83 NY2d 962). On a motion for summary judgment, the court should engage in issue finding, not issue determination (Masucci v Feder, 196 AD2d 416, 420). The dissent’s opinion appears to be based, in part, on a determination that Mrs. G did not have BDD. This conclusion is premature. Defendant’s expert is of the opinion that Mrs. G did not display enough of the standard symptoms of BDD to warrant such a diagnosis, while plaintiffs’ experts give specific reasons for reaching a contrary conclusion, such as her history of obsessive preoccupation with and exaggeration of her bodily imperfections. This factual dispute is for the jury to resolve. Furthermore, the dissent treats as dispositive the absence of evidence that Dr. Freiman communicated to her a diagnosis of BDD, while discounting a positive diagnosis by her two experts because they occurred more than four years after Dr. Hugo’s operation. It is to be noted that when asked whether Dr. — 44 — Freiman had told her she “had” BDD, she responded “We discussed it.” Dr. Freiman’s 1984-1988 treatment of Mrs. G is no closer in time to the disputed 1993 surgery than are the experts’ examinations in 1998. These considerations merely go to the weight to be afforded to the evidence, which is not for us to evaluate at this juncture. Finally, we disagree with the dissent’s contention that Mrs. G will have no way to prove that she suffered from BDD because Dr. Freiman’s records and testimony are unavailable. The admissible evidence includes her own deposition testimony as well as the opinions of her medical experts, which defendant’s expert disputes based on his examination and evaluation of Mrs. G.* The weight to be afforded to experts’ conflicting testimony is a matter best reserved for the jury (see, Gleeson-Casey v Otis El. Co., 268 AD2d 406). Accordingly, the order of the Supreme Court, New York County "(Stanley Sklar, J.), entered July 1, 1999, which, inter alia, denied defendant’s motion for summary judgment dismissing the complaint, should be affirmed, without costs. Footnotes [*] The dissent makes much of the absence of an affidavit from Mrs. G, and gives the misimpression that therefore we have no testimony by Mrs. G in the record, when in fact 35 of the 112 pages of her deposition testimony are reproduced there. It should be noted, as well, that there was no affidavit from the movant, Dr. Hugo.