Opinion
No. 100540/11.
02-09-2015
Rebecca B. JAMES, Plaintiff, v. John W. DECORATO, M.D., F.A.C.S. and Aesthetic Pavilion, LLC, Defendant(s).
Opinion
Upon the foregoing papers, the motion for summary judgment of defendant JOHN W. DECORATO, M.D., F.A.C.S., is granted.
Plaintiff REBECCA B. JAMES commenced this medical malpractice action against defendants JOHN W. DECORATO, M.D., F.A.C.S. and AESTHETIC PAVILION, LLC, to recover damages for injuries allegedly sustained as a result of various cosmetic surgery procedures performed by DR. DECORATO on December 2, 2009.
Pursuant to a Stipulation signed on February 26, 2014, the causes of action against this defendant have been discontinued.
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In her complaint, plaintiff alleges, inter alia, that DR. DECORATO was negligent in departing from good and accepted medical practice when he performed liposuction of plaintiff's abdomen and thighs; back-grafted her buttocks and lips; caused and allowed the formation of excessive and severe post-auricular scarring; improperly performed cosmetic surgery, including a blepharoplasty, lipoplasty, autologous gluteal augmentation with fat grafting, submental and neck smartlipo, bilateral transconjunctival lower blepharoplasty with CO2 laser resurfacing, and autologous upper and lower lip augmentation with fat grafting. In addition, it is alleged that DR. DECORATO's malpractice resulted in the formation of excessive and severe scarring.
It is further alleged that all of these procedures left plaintiff with (1) tracking scars from the back around the hips to the abdomen due to improper use of cannula during liposuction ; (2) non-uniform appearance of the abdomen, both thighs and the back from over-suctioning in some areas and under-suctioning in others; (3) indentation and wrinkling above the belly button; (4) a concave left inner thigh with pain; (5) wrinkling of the skin on both thighs; (6) an indentation on the right thigh; (7) discoloration and redness under both eyes from laser resurfacing which required prescription medication; (8) hypo-pigmented skin under eyes leaving non-uniform skin color on the face; and (9) skin bulging under both eyes.
Furthermore, plaintiff claims to have suffered, inter alia, extreme mental and emotional anxiety and distress; psychological difficulties; restriction of motion; and compromise/degeneration of the underlying soft tissues, nerves, tendons, and ligaments. It is further claimed that she will continue to experience disruption and difficulty in performing her normal daily activities, negatively affecting her enjoyment of life. She also claims that she will require continued medical care and future corrective surgery, and that all of these injuries are claimed to be permanent.
In addition, plaintiff alleges DR. DECORATO (hereinafter, defendant) violated Public Health Law § 2805–d(1) and (3) when he failed to disclose the alternatives to, and the reasonably foreseeable risks and benefits of, the proposed medical /surgical treatment in a manner sufficient to permit her to make a knowledgeable choice. According to plaintiff, had defendant properly disclosed the alternatives to the risks and benefits of the treatment which she underwent, she would have foregone said treatment entirely. Plaintiff also alleges that the above failure to obtain an informed consent was a proximate cause of her injuries.
It the current application, defendant moves for summary judgment dismissing the complaint as against him. In support, it is claimed that prior to surgery, plaintiff duly executed five separate, multi-page consent forms establishing that she was apprised of the various risks, benefits and alternatives to the procedures that she has chosen to undergo. In addition, it is claimed that plaintiff admitted under oath at her EBT that she attended a liposuction seminar conducted by this defendant and that he had additional detailed discussions with plaintiff regarding the planned procedures prior to surgery. According to defendant, all of the above renders plaintiff's cause of action for lack of an informed consent legally infirm and subject to dismissal.
Defendant also argues that the remainder of the complaint must be dismissed since plaintiff's only injuries include minimal, fleeting pain in her thigh, and her dissatisfaction with the results of the procedures. Moreover, while plaintiff complains of the possible need for future surgical procedures, defendant maintains that this is among the cited risks and complications of the procedures which plaintiff chose to undergo, all of which was fully disclosed in advance, as evidenced by the duly executed consent forms.
In addition, defendant argues that plaintiff's claim for battery is legally insufficient since the papers are devoid of any proof supporting plaintiff's allegations of nonconsentual bodily contact between herself and defendant. Finally, it is claimed that plaintiff's remaining allegations of purported “outrageous conduct” by defendant, including his inquiry as to whether plaintiff was a “lesbian”, do not raise to the level of extreme or outrageous conduct going beyond the bounds of human decency, and therefore, are not actionable.
With regard to the claims of negligence relating to the treatment which defendant rendered, defendant claims that there is no proof of any negligence on his part in the performance of any of the cited procedures. In support, he submits the expert affirmation of a physician, Dr. Theodore Diktaban, who is certified in both Plastic and Reconstructive Surgery, as well as Head and Neck Surgery. Dr. Diktaban attests that as part of his duties and responsibilities as a plastic surgeon, he routinely performs cosmetic surgical procedures, including liposuction, smartlipo, autologous fat grafting, bilateral transconjuctival lower blepharoplasty and periorbital laser resurfacing. In addition, he routinely treats patients needing the correction or revision of cosmetic surgical procedures. Here, after reviewing the pleadings, medical records and deposition testimony, as well as performing a physical examination of the plaintiff, Dr. Diktaban opines based upon his training, education, knowledge and experience in the field of plastic surgery and to a reasonable degree of medical certainty that all of the procedures performed by defendant were within the applicable standard of care, and that plaintiff's subjective complaints do not amount to a deviation from that standard. In addition, Dr. Diktaban states that the pre-and post-operative care rendered to plaintiff comports with good and accepted medical practice. In particular, Dr. Diktaban notes that his examination of plaintiff revealed that her facial expression was bilaterally intact; that the conjunctival incisions were well-healed; that there was no sclera, ectropion or entropion present; that her lower lid contours were smooth, natural and symmetrical; and that plaintiff's lower lid skin was soft and supple, with normal skin color. Furthermore, he observed that plaintiff's upper and lower lips were symmetrical and the neck was soft and supple. Although plaintiff's abdomen revealed loose skin, Dr. Diktaban noted that there was a non-keloidal scar from a prior hysterectomy ; that the contours of her lower back, inner thighs and posterior thighs were satisfactory overall, and that the access incisions from the liposuction were well-healed. In summary, Dr. Diktaban opined that the results of plaintiff's surgery were devoid of any functional deficits, except for the purported and subjective paresthesias of the left medial thigh.
Upon reviewing the consent forms signed by plaintiff, Dr. Diktaban found that each form clearly and distinctly set forth the accepted and known risks and the benefits of the respective procedures, including pain, skin contour irregularities, changes in skin sensation, unsatisfactory results and the need for future surgeries. Based on his experience, defendant's expert opined that he was unaware of any reasonable patient who would opt out of the surgeries performed on plaintiff following an outline of these risks and benefits. In conclusion, Dr. Diktaban ventured the opinion that none of the discussions, modalities of treatment or surgical procedures performed by defendant proceeded, in any way, from a lack of informed consent, and therefore, the lack of an informed consent could not be a proximate cause of any of plaintiff's subjective dissatisfaction, which she classifies as injuries.
In opposition, plaintiff contends that defendant's summary judgment motion should be denied and submits the affidavit of another cosmetic surgeon, Dr. Richard Marfuggi, who reviewed plaintiff's records with regard to the treatment rendered by defendant, in addition to examining, interviewing and photographing the plaintiff. According to this doctor, plaintiff's complaints and deformities are the direct result and were proximately caused by the operations and treatments rendered by defendant on December 2, 2009.
Dr. Marfuggi noted plaintiff's complaints that her lips were still the same size as they were prior to grafting, and that there was an uneven lump in her left upper lip. She also complained that the skin color change from the CO2 laser persisted under certain lighting conditions even after undergoing fraxel treatments (which did reduce the discrepancy); her left inner thigh had too much fat removed, leaving a concavity; she continued to experience sharp pain in her left thigh for a few seconds 1–2 times per month before resolving spontaneously; her abdominal contour was irregular, with “track marks” causing grooves; her right buttock was smaller than the left below the crease, with the right side was more indented than the left; and her neck was uneven with muscle banding and hanging skin.
Following his examination of plaintiff, Dr. Marfuggi noted that defendant doctor “instilled 3 liters of tumescent solution not only in [plaintiff's] abdomen but also in the anterior and medial thighs,” some 4 liters of aspirate, and injected “600 cc of fat into each buttock and 4 cc into [plaintiff's] lips” prior to performing liposuction ” and other cosmetic procedures. These “complications and deformities” are, he states, with a reasonable degree of medical probability, “a direct and proximate causes of her injuries”. He further reports that he noticed hypopigmentation of plaintiff's lower eyelids consistent with CO2 laser resurfacing, and that her left upper lip had a small area of irregularity consistent with residual fat from grafting. He also noted that plaintiff's neck was skeletonized in the midline, with a submental depression in the central region and banding of the platysma muscle. In addition, he noted that plaintiff's abdomen had multiple irregularities; her medial thigh regions were irregular; and her left buttock was smaller than the right.
According to Dr. Marfuggi, defendant should have known that (1) the failure to feather the margins of the areas treated with CO2 laser resurfacing would produce a sharp color demarcation line between treated and untreated skin; (2) the over-resection of fat in the midline of the submental region would cause central depression and a skeleton deformity of the neck; (3) the over-resection of fat in the neck would accentuate and/or cause jowl deformity; (4) the failure to evenly harvest fat and/or feather dissection margins would produce an uneven, lumpy contour; (5) liposuction performed in too superficial a plane would create visible grooves and creases in the skin; and (6) the failure to adequately prepare harvested fat and/or adequately pre-tunnel and inject fat for grafting would result in a high rate of graft failure. Finally, notwithstanding his failure to connect any of these observations to plaintiff's surgeries, he concludes by noting, again “with a reasonable degree of medical probability ” (emphasis added), that the “complications” (which he never describes as injuries) experienced by plaintiff “were the result of DR. DECORATO's failure to follow good and accepted practice”.
“In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries” (DiGeronimo v. Fuchs, 101 AD3d 933, 936 [internal quotation marks omitted] ). Contrarily, “[a] physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries” (Gillespie v. New York Hosp. Queens, 96 AD3d 901, 902 ). Assuming that the defendant can make such a showing, “the burden [then] shifts to the plaintiff to demonstrate the existence of a triable issue of fact” (id. at 902 ). Thus, a plaintiff must submit expert medical evidence sufficient to rebut defendant's prima facie showing in order to avoid summary judgment (see generally Fileccia v. Massapequa Gen. Hosp., 63 N.Y.2d 639, affirming 99 A.D.2d 796 for the reasons by the Appellate Division). Therefore, general allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements thereof, are insufficient to defeat the motion (id. ).
Here, it is the opinion of this Court that the defendant doctor established his prima facie entitlement to judgment as a matter of law by submitting the opinion of an expert in the field of plastic surgery, who opined that defendant did not deviate from good and accepted medical practice with regard to the procedures and treatment rendered to plaintiff (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325 ; Johnson v. Queens–Long Island Med. Group, 23 AD3d 525, 526–527 ). In addition, defendant has established through the same expert's affidavit that the surgeries were performed only after the risks, benefits, and alternatives were discussed with plaintiff; the possibility of a less than optimal outcome noted; and the appropriate consent forms signed. In opposition, plaintiff has failed to raise a triable issue of fact.
At bar, the affidavit of plaintiff's expert is devoid of any medical evidence establishing or tending to establish that defendant was, in fact, negligent in his performance of any of the procedures in issue. To the contrary, a majority of his affidavit is devoted to a recitation of the facts set forth in plaintiff's medical records and a list of her complaints, all of which can be found elsewhere, e.g., in the bill of particulars. Also present is a list of known factors which can adversely affect the success of cosmetic procedures, but which he fails to relate to defendant's purported acts of negligence in the surgeries which plaintiff underwent and/or the results obtained. For example, while he recounts in detail the volume of tumescent solution, aspirate and fat defendant injected into various parts of plaintiff's body (i.e ., her abdomen, thighs, lips, buttocks and neck), he fails to address the question of whether or not this represented a departure from accepted practices. The Court is, thus, left to speculate as to the inferences, if any, to be drawn. Neither does his affidavit directly address the issue of causation or whether the consent forms signed by plaintiff were adequate. Nevertheless, Dr. Marfuggi claims to be able to affirm “with a reasonable degree of medical probability” that plaintiff's “complaints and deformities were a direct result of the operations and treatments performed [by defendant]”, and that the “complications” experienced by plaintiff were, within the same degree of “medical probability”, the result of defendant's failure to follow “good and accepted practice.” More importantly, however, the affidavit of plaintiff's expert failed to set forth either an accepted standard of care (cf. Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544–545 [2002] ), or to offer any insight into the manner in which the surgeries, care and treatment rendered to plaintiff departed therefrom (see Howard v. Stranger, 122 AD3d 1121, 1125 ). In this regard and others, the four and one-half page affidavit submitted by plaintiff's expert is equivocal, conclusory, speculative and lacking in reasonable medical certainty (as opposed to a “probability”) that acceptable standards of care were not followed in this case (see Barrocales v. New York Methodist Hosp., 122 AD3d 648, 649–650 ). Accordingly, it is insufficient to raise a triable issue of fact (cf. Indig v. Finkelstein, 23 N.Y.2d 728, 729 ).
In brief, while the affidavit of plaintiff's expert indicates that defendant should have been aware of the complications of the proposed surgery previously noted, said expert never affirms that any of these complications actually occurred in this case, or that defendant's failure, if any, to appreciate their likelihood constituted a deviation from good and accepted practice. Conclusions based on assumptions predicated on hypotheses that certain theoretically possible complications actually occurred are entitled to little or no weight.
With regard to the cause of action for “lack of an informed consent”, Public Health Law § 2805–d(1) proscribes the failure of the person providing medical treatment to disclose to the patient such alternatives and the reasonably foreseeable risks and benefits which a reasonable medical, dental or podiatric practitioner, under similar circumstances, would have disclosed in a manner permitting the patient to make a knowledgeable decision. As is relevant, Public Health Law § 2805–d(3) further provides that the plaintiff in a cause of action predicated on a violation of the above subdivision must also establish that a reasonably prudent person in the patient's position would not have undergone the proposed treatment if he or she had been fully informed of the risks and benefits, and that the lack of informed consent was a proximate cause of the injury or condition for which damages are sought.
Here, defendant-doctor has established his prima facie entitlement to summary judgment dismissing this cause of action as well through, since the affidavit of Dr. Diktaban indicates that he reviewed the multiple consent forms signed by plaintiff and found them to be clear and complete, i.e., that they adequately informed plaintiff about the proposed procedures, the alternatives thereto, and the reasonably foreseeable risks and benefits associated therewith, including the need for revisionary surgery (see Ortaglia v. Scanlon, 35 AD3d 421 ). In opposition, plaintiff's expert failed to address this issue, and thus, has failed to rebut defendant's prima facie showing. Furthermore, it should be noted that the EBT testimony of both plaintiff and defendant indicates that prior to undergoing the subject cosmetic procedures, plaintiff attended an hour-long seminar conducted by the doctor during which he explained the liposuction procedure along with its risks and benefits, and that plaintiff was given various brochures and/or pamphlets in regards to same.Also worth noting is plaintiff's failure to deny defendant's assertion during his EBT that he had discussed with plaintiff some of the details of the liposuction procedure, e.g., the need for viable fat; that the procedures involved retrieving fat from certain areas of the body; and that there is always a risk of contour deformity whenever fat is removed. Finally, upon any fair reading, the forms contained sufficient information to allow plaintiff to make an informed decision (see Public Health Law § 2805–d[1] ).
In view of all of the foregoing, plaintiff's conclusory assertion that she was unaware of the particulars of the procedures and/or that she would never have agreed to undergo same had she been fully informed of the potential risks, is an insufficient basis upon which to deny summary judgment. Accordingly, this claim must also be dismissed (see Rebozo v. Wilen, 41 AD3d 457, 459 ).
While the Court is not unsympathetic to plaintiff, she has failed to produce any proof that she sustained any compensable physical injury related to DR. DECORATO's purported malpractice. Rather, this action appears to be based on her dissatisfaction with the results of these cosmetic procedures, but which she was cautioned might require additional surgery. In addition, while plaintiff may, in fact, suffer from occasional pain in her left thigh, this is a risk that was specifically addressed in the consent forms which she signed. Notably, these consent forms also explained that the results of the procedures could not be guaranteed. Furthermore, plaintiff admitted at her EBT that many of her original complaints had resolved over time, and that she has not experienced any disruption or difficulties with her daily activities. Therefore, it appears that plaintiff suffered no permanent damage as a result of DR. DECORATO's alleged malpractice.
Plaintiff's ancillary allegations of battery, unlawful touching, and offensive language or conduct on the part of defendant are not supported by any objective proof, and are in many ways negated by the various consent forms executed by her. As a result, they fail to raise any triable issue of fact.
Accordingly, it is
ORDERED that defendant's motion for summary judgment is granted in its entirety and the complaint is dismissed; and it is further
ORDERED that the Clerk enter judgment accordingly.