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Cosmetic surgeons must take into account their patients’ psychiatric conditions in obtaining informed consent for elective surgery, a panel of the Appellate Division, First Department, decided Tuesday. A sharply divided panel upheld a Manhattan trial judge’s denial of summary judgment in a case where a woman said she received unsightly scars from liposuction and abdominoplasty procedures and was not presented with adequate alternatives to surgery. The court said the plaintiff stated a viable cause of action against Dr. Norman Hugo, whom she visited on at least 50 occasions, because the doctor failed to take into account that she suffered from Body Dysmorphic Disorder, or a preoccupation with a minor or imaginary physical flaw. By a 3-2 margin, the majority, in an opinion signed by Justice Ernst H. Rosenberger, said that the plaintiff’s psychiatric condition could have prevented her from providing adequate informed consent, and that Hugo, the chief of plastic surgery at Columbia-Presbyterian Hospital, had to be mindful of his patient’s mental state. But in dissent, Justice Richard W. Wallach said that there is no evidence that her psychiatric condition rendered the plaintiff incompetent to consent to surgery. He called the majority decision “an unacceptable form of judicial legislation.” In Lynn G. v. Hugo, 135, the plaintiff, identified only as “Lynn G.,” in February and November 1993 underwent repeated liposuction procedures and a full abdominoplasty in surgeries performed by the defendant, Hugo. Lynn G. allegedly sustained unsightly scarring from the procedures, and brought a cause of action alleging medical malpractice, based on the failure to obtain informed consent due to a lack of advice on less invasive alternatives to a full abdominoplasty. She claimed that her psychiatric condition rendered her incapable of giving informed consent. In July, 1999, Manhattan Supreme Court Justice Stanley Sklar denied a motion by the defendant to dismiss the complaint based on the patient’s consent to the surgeries. The three-justice majority agreed with Sklar’s reasoning and held that a cosmetic surgeon has a duty to provide objective guidance to a patient whose capacity for self-assessment “is clearly disordered.” NOTICE OF IMPAIRMENT The majority said that Hugo took a “laissez-faire attitude” in counseling his plastic surgery candidates. Such an approach, the majority said, “may not be sufficient … when the patient’s judgment seems to be impaired.” Hugo, the facts indicate, had some notice of G.’s impairment, Rosenberger stated. The patient disclosed she was using antidepressants such as Prozac and said she had been suffering from “extreme nervousness or anxiety.” G.’s preoperative report also noted her history of depression. “When this [psychiatric] history is coupled with Ms. G.’s extraordinary eagerness for surgical alteration … 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 Ms. G.,” Rosenberger wrote. The majority said that Hugo showed “an almost complete lack of curiosity about his patient’s mental state” and criticized him for his deposition testimony that he “had never even heard of Body Dysmorphic Disorder.” Hugo, Justice Rosenberger pointed out, was chief of plastic surgery at Columbia-Presbyterian Hospital, which had a clinic for the treatment of that very disorder during the period in which he was treating G. Joining Rosenberger in the majority were Justices Milton L. Williams and Betty Weinberg Ellerin. ‘BLANKET RULE’ In dissent, Wallach said that the majority had imposed a duty for a plastic surgeon to consult with mental health professionals before performing surgery. “We reject this notion that this record warrants the imposition of a psychiatric referral requirement for the benefit of the plastic surgeon himself,” Wallach wrote. “The pronouncement of such a blanket rule, imposed under threat of a malpractice lawsuit if not complied with, is far beyond the competence of any court.” Wallach was joined by Justice David B. Saxe. They said that dismissal of the lawsuit was proper since there was no evidence on the record that G.’s tendered informed consent was hindered by her psychiatric condition. Rosenberger said that the majority ruling did not impose a blanket rule, and only required the physician to take into account the known impairments of their patients before accepting their informed consent to surgery. Lynn G. was represented by Morton Povman of Forest Hills, Queens. Hugo was represented by Richard Paul Stone of Costello, Shea & Gaffney.

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