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Rosenberger v. Hugo6/27/2000
Defendant appeals from an order of the Supreme Court, New York County (Stanley Sklar, J.), entered July 1, 1999, which, inter alia, denied his motion for summary judgment dismissing the complaint.
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.
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 by Andreach v. Mount Sinai Med. Ctr., 253 AD2d 397). Public Health Law ยง 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, 2000 NY App Div LEXIS 1319; Lowery v. Hise, 202 AD2d 948, 949).
The dissent emphasizes that D
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