Lynn G. v. Hugo

272 A.D.2d 38, 710 N.Y.S.2d 334, 2000 N.Y. App. Div. LEXIS 7517

Opinions

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]*40The 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]*41patient’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]*42because persons with this disorder have irrationally exaggerated perceptions of their bodily imperfections.

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Lynn G. v. Hugo, 272 A.D.2d 38, 710 N.Y.S.2d 334, 2000 N.Y. App. Div. LEXIS 7517 (N.Y. Ct. App. 2000).

272 A.D.2d 38 (Lynn G. v. Hugo) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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