Lynn G. et al.,
Respondents,
v.
Norman Hugo, M.D.,
Appellant.
2001 NY Int. 68
In this action to recover damages for medical malpractice and lack of informed consent, we are called upon to decide whether a triable issue of fact exists to defeat defendant's motion for summary judgment. We conclude there is not.
As the parties' summary judgment submissions reflect,
plaintiff Lynn G. visited defendant Dr. Norman Hugo, a plastic
surgeon, approximately 50 times over a six-year period to discuss
various cosmetic procedures. During that period, she underwent a
series of elective surgeries, including eyelid surgery, facial
When the liposuction failed to produce the desired results, plaintiff underwent a full abdominoplasty or "tummy tuck" to tighten her abdomen. Prior to the surgery, defendant informed plaintiff of the risks associated with an abdominoplasty, including "ugly scars." Once again, plaintiff acknowledged, in writing, her understanding of the risks and executed a consent form. Following her surgery on November 9, 1993, plaintiff complained of an unsightly scar on her abdomen.
Plaintiff and her husband, derivatively, commenced this
medical malpractice action against defendant, alleging lack of
informed consent and medical malpractice. Specifically,
plaintiff claims that she lacked capacity to consent to the
procedures because she suffered from Body Dysmorphic Disorder
("BDD"), a preoccupation with slight or imaginary physical
imperfections that causes considerable distress or functional
impairment (Diagnostic and Statistical Manual of Mental
Disorders, 300.7, at 507 [4th ed. 1994]). Plaintiff maintains
Following completion of discovery, defendant moved for summary judgment dismissing plaintiff's complaint. Supreme Court denied the motion, concluding that the parties' conflicting expert affidavits raised issues of fact on all claims. A divided Appellate Division affirmed and certified the following question to us: "Was the order of the Supreme Court, as affirmed by this Court, properly made?" We answer that question in the negative.
The parties' submissions entitled defendant to judgment
as a matter of law. Defendant made a prima facie showing of
informed consent by submitting deposition testimony and medical
records establishing that he had informed plaintiff of the risks
associated with the procedures, including scarring, and that she
had signed written consent forms indicating her understanding of
those risks (see, Public Health Law § 2805-d[1]). In addition,
defendant furnished a report from a psychiatrist who examined
Defendant also furnished an affidavit from a plastic surgeon who reviewed the medical records and deposition testimony and opined that defendant adequately informed plaintiff of all risks and alternatives, and did not deviate from acceptable medical practice by not referring her to a psychiatrist. He noted that nothing in plaintiff's medical history indicated that she suffered from BDD, nor was her use of antidepressant medication sufficient to alert defendant to this condition. With respect to plaintiff's claim that defendant negligently combined liposuction with a full abdominoplasty, the expert concluded that defendant properly spaced the two procedures nine months apart to allow adequate time for healing.
In opposition, plaintiff submitted affidavits from a
plastic surgeon and a psychiatrist. These affidavits, however,
fail to create a genuine issue of material fact. First, they
raise no issue that plaintiff suffered from BDD at the time of
her surgeries, or that her ability to consent was impaired by any
mental disorder. Instead, plaintiff's experts could only surmise
that her depression and obsession with her appearance were
"consistent with a form of" BDD, and that defendant should have
ascertained plaintiff's mental condition before performing the
surgeries. The record is otherwise devoid of proof that
Nor does a question of fact exist as to whether
plaintiff's consent was vitiated by defendant's failure to inform
her of less invasive alternatives. All that was tendered by
plaintiff to support this claim was a plastic surgeon's affidavit
stating that defendant "would" have departed from accepted
medical practices "if [he] did not inform [her] of * * * less
invasive procedures," such as a suction assisted lipectomy, or a
modified or mini-abdominoplasty. These conclusory assertions
fall short of raising a fact question regarding reasonable
alternatives. Moreover, plaintiff's own deposition testimony
reveals that defendant did, in fact, discuss these options with
her. Finally, plaintiff's expert's conclusory assertion that
Accordingly, the order of the Appellate Division should be reversed, with costs, defendant's motion for summary judgment granted and the certified question answered in the negative.