A New York State Appellate Division court handed down a decision on June 27 that has New York’s plastic surgeons ready to drop their scalpels and run. The decision, signed by Justice Ernst H. Rosenberger, ruled that a patient had the right to sue her plastic surgeon for malpractice because the doctor failed to take into account that she had psychological problems–specifically an obsession with her body image–that made her incompetent to give real consent to the surgery.
The patient referred to in the decision is Mrs. Lynn G., an attractive Upper East Side resident who’s about 5 feet 2 inches tall and weighs only 105 pounds. She is 53 and, not unlike many of her 10021 neighbors, has a successful-businessman husband, two grown children and no need for a job. Mrs. G., whose name has been sealed by the court, also has had a nose job, several eyelid surgeries, three liposuctions to the chin, tattoos on her eyebrows, several injections of fat and Botox to smooth out wrinkles, removal of skin growths, liposuction of the abdomen, flanks, thighs and knees, a breast lift, a liposuction of the inner thighs and a tummy tuck, among a number of plastic surgery procedures performed over 29 years.
But her real problems are inside her head, according to the lawsuit that she recently filed against her plastic surgeon of seven years. And if she ultimately wins, Park Avenue’s notoriously body-obsessed plastic surgery aficionados may soon be obliged to get their heads shrunk before they can get their faces lifted.
There’s nothing unusual about a patient being unhappy with the results and suing her plastic surgeon; plastic surgeons pay among the highest malpractice insurance premiums of all specialists, although jury awards tend to be low.
But Mrs. G.’s suit blames her doctor for performing the surgery at all , claiming he should have known she had severe body-image issues.
That her doctor is Norman Hugo, the former head of plastic surgery at Columbia Presbyterian Hospital, has only heightened interest in the case. According to colleagues, Dr. Hugo was a well-regarded teacher and surgeon who is a past president of the American Society of Plastic Surgeons. He has recently retired.
Plastic surgeons said a verdict for Mrs. G. would put them in the position of determining a patient’s mental state before proceeding with the surgery. Like bartenders and party hosts now held liable should a customer or guest drive drunk and commit a crime, they would have to determine whether their client is making a sober judgment.
But does that mean Jocelyne Wildenstein, who is apparently pleased with the infamous surgeries that have left her looking like a tight-skinned cat, should be refused her next face lift? (Mrs. Wildenstein’s attorney, Bernard Clair, would not comment on either his client or this case.) When–medically and legally–is a body obsession a disorder?
“As a plastic surgeon, this is very chilling to me,” said Dr. John G. Hunter, a clinical assistant professor of plastic surgery at Weill Cornell Medical College, “because it makes us more vulnerable to everybody who walks through the door who is displeased after they have had any kind of an aesthetic procedure. Now you cannot just use your practice experience and whatever psychology you understand; now you have to start doing personality screenings in your office. Imagine the lawsuits that will occur then, where you have to say [to a patient], ‘Well, you took a standardized test that shows you have a borderline personality.'”
Over a Tummy Tuck
Like many other veterans of numerous elective surgeries, Mrs. G. had forged a long-term relationship with Dr. Hugo. It began in 1987, when she first brought her daughter to him for a rhinoplasty, and lasted the next seven years, during which Mrs. G. consulted with him 50 times, according to court papers. She had already had at least one other elective surgery from another doctor when she first met Dr. Hugo, and he subsequently performed nearly a dozen elective procedures of varying kinds.
Mrs. G. was not available for comment, and her lawyer, Morton Povman, also declined to comment. But according to the Appellate Court’s opinion and a source close to the case, Mrs. G. was unhappy with what she claims was unsightly scarring resulting from her last two surgeries, an abdominal liposuction and an abdominoplasty (or tummy tuck), in 1993. So she sued Dr. Hugo for medical malpractice.
Dr. Hugo came to Columbia Presbyterian from Northwestern University Medical School in the early 80’s to become chief of the hospital’s plastic surgery department, and he remained the head of plastics until 1994. Dr. Hugo did not return a call requesting comment.
Mrs. G. alleges, according to the Appellate Court’s opinion, “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.” Mrs. G. was seeing a psychiatrist from 1986 to 1990, and Dr. Hugo knew that she had been taking Prozac and Elavil while under the psychiatrist’s care. It is unclear whether Mrs. G.’s psychiatrist ever formally diagnosed her with B.D.D. and, according to the court opinion, the psychiatrist died before being deposed, and all of Mrs. G.’s medical records were destroyed or disappeared in an office burglary. However, an expert witness, a psychiatrist retained by Mr. Povman, concluded in 1998 that Mrs. G. had B.D.D. Her claim is that Dr. Hugo’s awareness of her psychiatric history, coupled with her high demand for plastic surgeries, should have at least prompted the plastic surgeon to consult with a mental-health professional before performing the final surgeries.
The Appellate Division decision gives Mrs. G.’s attorney the right to take the issue to trial in Manhattan Supreme Court. No trial date has been set. She is seeking unspecified damages.
How to Say No
But Mrs. G.’s case has the potential to become more than just a matter-of-course nuisance for Dr. Hugo alone.
“There is a question that a plastic surgeon would have to have a psychiatric consultation every time he does a surgery,” said Luke Pittoni, a defense attorney who handles medical malpractice cases. “I don’t think that one case becomes a landslide, but it’s something they’re going to be concerned with.”
The alternative is for plastic surgeons to make the psychological evaluation themselves. Warren Sanger, a medical malpractice defense attorney, was outraged: “Is the plastic surgeon qualified to make such an evaluation? He doesn’t have the expertise. If you accept this premise, then every person who goes to get plastic surgery would have to submit to a psychological evaluation.”
The final alternative would be to just say no. For specialists who perform procedures that are not covered–or limited–by insurance companies, that also means saying no to big up-front payments.
But if they must choose among patients, which of those persons seeking plastic surgery doesn’t have some kind of body obsession–at least with the body part they are prepared to pay hefty fees to have changed?
“As a general rule,” said David Taback, a medical malpractice attorney who has represented both patients and doctors, “people who go in for cosmetic surgery motivated by vanity have expectations that can rarely be met. They look at themselves, and they see gargoyles. You could make the argument that every single person with that outlook has a body disorder. Every single patient could become a potential adversary.”
Mr. Taback’s outlook is alarmist, but that’s also the way plastic surgeons tend to see things. “I feel like I’m practicing medicine in a very defensive fashion,” said one well-known Upper East Side plastic surgeon, “because at any point the patient who happens to have gone through a divorce two years ago and is on an antidepressant, who wants to look better, can turn around and say, ‘I was on Prozac and you operated on me, so I was mentally incompetent.’
“At least 30 percent of my patients are on Prozac or one of those types of drugs,” she added. “Does that mean that 30 percent of my patients are not competent to sign a consent?”
That, of course, is the trickiest issue posed by the pending case.
One can envisage cases where [a psychiatric consultation] is completely superfluous,” Dr Harrison Pope, professor of psychiatry at Harvard Medical School. “Then there are people who are quite obviously impaired and a psychiatric consultation is needed. There is a huge murky area in between where it’s hard to draw a threshold. It’s an absolutely smooth slope from minimum to maximum distortion.”
Body Dysmorphic Disorder would qualify as maximum distortion. A recognized condition, it is listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders .
“Many people who have B.D.D. have distortion of perception, they have a visual illusion, so their visual image is distorted–they 100 percent believe that their defect exists. It’s not uncommon for them to feel they have a poor outcome with plastic surgery–to think, or imagine, or perceive that they have a poor outcome. It’s not that unusual for them to sue their plastic surgeons. Or to shoot their surgeons,” said Dr. Eric Hollander, a professor of psychiatry at Mount Sinai School of Medicine and the director of the compulsive, impulsive and anxiety disorders programs.
But even extreme cases of body-image disorder can be hard to spot, Dr. Hollander said. “Patients with B.D.D. can be very secretive–they may not tell people about it fully, particularly if they’re strongly motivated to have surgery. And if you don’t ask specific questions, it’s very easy to overlook it.”
So, in lieu of a medical threshold, should there be a legal threshold for refusing surgery?
“Maybe we should have the five-surgery rule,” Michael Ellenberg, a medical malpractice defense attorney, suggested with a sarcastic sniff. “How are we going to supervise that ? You’ve gotten to your fifth procedure from me, what prevents her from going down the road to plastic surgeon B, and not telling him that she’s had others? Some procedures you can’t see.”
Even in the case of procedures you can see, it’s hard to set a standard, surgeons and lawyers agreed. Over and over, they pointed to Jocelyne Wildenstein’s overly feline face as the example of a plastic surgery addiction that some surgeon should have stopped somewhere along the way. But according to an Upper East Side plastic surgeon who is friendly with Ms. Wildenstein’s most recent plastic surgeon, Dr. Richard Coburn, and who claims to have had dinner with Ms. Wildenstein, the cat lady is neither crazy nor unhappy. “Jocelyne Wildenstein is ecstatic with her work. She thinks and feels beautiful. She looks in the mirror and she loves what she sees. She got exactly what she wanted. The success of an operation has nothing to do with what you, or I, or Dr. X think about the result–it’s whether the patient is happy,” she said.
It’s Ms. Wildenstein’s happiness, in fact, that might give the courts pause before they adopt any standard that might make it harder for someone to get plastic surgery.
“It’s very hard for me to believe that any appellate court would be interested in making it so cumbersome for people to consent to medical treatment. This is not just a burden for the surgeon; it’s a burden for the patient, too,” said Carl E. Schneider, a bioethicist who teaches at the University of Michigan’s law school and medical school.
Shrink Rap
But what if the court decides that Dr. Hugo is liable? Patients may soon have to include a psychiatric evaluation as a standard step in the pre-surgical procedure. If so, some defense attorneys predict that there would be extraordinary patient resistance, because the psychiatric requirement would be too expensive, too onerous–and too embarrassing.
And what would that seal of approval really mean, Mr. Schneider asks: “This is a big market, and if you need some kind of psychiatric certificate, one will be forthcoming.”
So has Mrs. G. ruined it for everyone? Only if she wins. And that is not easy, according to plaintiffs’ attorneys. Juries don’t tend to look sympathetically on elective surgery cases, which are usually brought by attractive women who are not satisfied with the result of an expensive procedure.
Yet if Park Avenue’s plastic surgery devotees find it tougher to get a facelift or liposuction or skin peel, it might not be such a bad thing, said Steven North, a plaintiffs’ lawyer in malpractice cases.
“Maybe there is good reason to screen such people to see if what they’re seeking is reasonable or not. If there’s an unstable population seeking plastic surgery, maybe they should be checked,” he said.
