Opinion
SCK5837/2005.
Decided March 22, 2006.
In this small claims case, claimant sues defendant, as set forth in the small claims card, for "breach of contract and personal injury on 10-06-04." Defendant is a plastic surgeon and claimant was his patient. Defendant operated on claimant on October 6, 2004. Claimant was unhappy with defendant's performance and filed this case ten months later, on August 4, 2005. At the trial on February 1, 2006, claimant represented herself and testified on her own behalf, and defendant was represented by counsel and testified on his own behalf.
Based upon the evidence introduced at trial and having had the opportunity to observe the demeanor of the witnesses and the credibility of their testimony, the Court finds as follows:
FINDINGS OF FACT
Claimant, having lost over a hundred pounds after gastric bypass surgery, presented to defendant plastic surgeon with loose skin hanging from her upper arms. Claimant believed the flabbiness was unsightly and wanted defendant to tighten the skin on her upper arms. The parties agreed to a fee of $3,500 for the cosmetic portion of the procedure, none of which was payable by insurance. Because claimant had lipomas in both upper arms, insurance would cover the costs related to the non-cosmetic part of the surgery, that is, insurance would cover the operating room, the removal and biopsy of the lipomas, the anesthesiologist, and the like.
Claimant testified that her arms looked and felt worse than before defendant operated and that now her grandchildren were afraid to be held by her. With regard to the alleged physical pain, claimant testified only vaguely. With regard to the aesthetics, claimant complained about both the look and the location of the scars. At the trial, claimant showed the Court her reddish-purplish scars, approximately 1/8 inch wide, running down the outside of each upper arm. She testified that defendant had specifically told her that the scars would run on the inside of her upper arms; however, as stated above, the scars were on the outside, so even when her arms rested on her sides, the scars were visible.
Defendant testified that he never promised claimant any particular result from the surgery. Defendant credibly testified that the scars would lighten over time, and even if they remained as they were as of the date of the trial, he had no responsibility for the color or thickness. The defendant testified credibly that different people heal and scar differently, and that he has never, and would never, specifically promise a particular result about the nature of the scarring. On this point, the Court credits defendant's testimony; he was adamant, forthright, and entirely credible. The Court finds that defendant did not make any particular promise or assurance to claimant regarding the size or color of her scars.
The Court reaches a different conclusion, however, with regard to the location of the incisions and, therefore, the location of the scars. Claimant testified credibly, and defendant never denied, that in all the "before and after" pictures defendant showed her in his office, the incision was made on the inside of the upper arm. Claimant testified that she specifically asked defendant where the incisions would be, and that he indicated that the incisions would be on the inside of the upper arms. The Court credits claimant's testimony on this point; it is entirely credible that she specifically wanted to know where the scars would be located. Claimant was going to defendant so she would look better, not worse. Defendant is a plastic surgeon and claimant was interested in cosmetic surgery; of course it was important for her to know where her scars would be.
The bottom line is that the cosmetic surgery on the upper arm requires a tradeoff for the patient a scar instead of flabby skin. A patient who would trade her flabby skin for a scar on the inside of her arm might not trade it for a scar on the outside of her arm. To the extent defendant denied assuring claimant that the incision would be on the inside of her arm, the Court finds his testimony not credible. The Court finds that claimant asked defendant about the location of the scars, and defendant promised claimant that he would make the incisions on the inside of her arms, where he had made the incisions for his other patients in the "before and after" pictures. Therefore, that is where claimant expected the scars to be.
This Court's finding that defendant specifically promised claimant that he would make the incisions on the inside of her arms is based not only upon what defendant said at trial, but what he did not say. Remarkably, defendant did not offer any testimony about why he made the incisions on the outside of claimant's arms. Had defendant testified, for example, that he intended to make the incisions on the inside of her arms, but due to some particular unforseen circumstance, he had to make the incisions on the outside, that might have persuaded the Court and mandated a different result in this case. But defendant did not so testify. Further, based upon his testimony and demeanor, as well as principles of common sense, the Court disbelieves defendant's denial of having any discussion with claimant about the location of the scars. When a person considering cosmetic surgery consults with a plastic surgeon, one of her first questions will be how the area will look after the procedure; after all, an unsightly result undermines the purpose of the surgery. The Court believes that claimant inquired about the scars, and that among the things defendant told her was that they would be on the inside of her arms.
CONCLUSIONS OF LAW
The threshold question is whether this claim sounds in medical malpractice, as defendant urges, or in breach of contract, as claimant urges. If the case sounds in malpractice, defendant would win because no expert testimony was offered and even in small claims court, a claim for malpractice must be supported by expert testimony. See Streeter v. Ackerman, 2003 NY Slip Op 51199[U] [App Term, 1st Dept]. Claimant was informed of this requirement, and decided to proceed on a breach of contract theory only.
Since the testimony reflects that defendant promised to make the incisions on the inside of the arms and failed to do so, and defendant did not offer any medical rationale to explain why he did not or could not make the incisions where he promised, this Court finds that claimant has stated a claim for breach of contract. No expert is necessary to either explain or rebut defendant's promise or his failure to make the incisions on the inside of the upper arms as promised. It does not matter whether defendant's express promise was medically sound or possible to achieve; what matters is that he made an express promise to make the incisions in a particular place and did not keep that promise.
In order to determine whether claimant proved her claim for breach of contract against defendant, the Court must examine the quality of the promise. "A breach of contract claim in relation to the rendition of medical or dental services by a physician or dentist will withstand a test of its legal sufficiency only when based upon an express special promise to effect a cure or accomplish some definite result." Clarke v. Mikail, 238 AD2d 538, 538, 657 NYS2d 940 [2nd Dept 1997]; see also Robins v. Finestone, 308 NY 543, 546; Varone v. Delman, 272 AD2d 320, 707 NYS2d 879 [2nd Dept 2000]. Courts have upheld contract claims based upon a "specific promise to deliver [a] baby without the administration of blood," ( Nicoleau v. Brookhaven Memorial Hospital Center, 201 AD2d 544, 545, 607 NYS2d 703 [2nd Dept 1994]); a "special contract" by a dentist "to remove every part of [extracted] teeth from every part of the [patient's] body," ( Keating v. Perkins, 250 AD 9, 10, 293 NYS 197 [1st Dept 1937]); and a "special agreement" by a plastic surgeon "to employ a different method than plastic surgeons use" so that "the incisions would not go beyond the corner of her eyes and that the resultant scars, if any, would fall within the natural crease of the skin." ( Paciocco v. Acker, 121 Misc 2d 342, 342, 467 NYS2d 548 [Sup Ct, Nassau County 1983]). Here, defendant's promise to make the incisions only in a particular place, thus resulting in scars only in a particular place, rises to the level of an express special promise to obtain a particular result.
Defendant makes much of the "informed consent" form signed by claimant right before she went into the operating room (defendant's exhibit A). Only two sections of the consent form are arguably relevant. First, paragraph 3 informed claimant that unforseen conditions during the procedure might necessitate a change in the surgery. As stated above, however, defendant never testified that he had to change the surgery due to an unforseen condition. Second, in paragraph 6, claimant "acknowlege[d] that no guarantees or assurances ha[d] been made to [her] concerning the [procedure]." The Court does not find this general provision effective to absolve defendant from an express promise made to her about the location of the scars. Defendant's promise to her was not a "guarantee" of a particular result but a definitive description of the surgery itself. See Bobrick v. Bravstein, 116 AD2d 682, 497 NYS2d 749 [2nd Dept 1986]. In the Court's view, the consent signed just before the procedure did not vitiate defendant's express promise with regard to what was being done, to wit, that incisions would be made on the inside of her arms.
Moreover, the Court notes that defendant did not require claimant to sign a consent form during her office visit to him when he explained the surgery to her and she decided to proceed, even though there was a consent form directly below the financial responsibility form which claimant signed (defendant's exhibit C).
Having found that claimant proved a breach of contract by defendant, the Court turns to the issue of damages, which claimant has the burden of proving. See Roman v. Tranny Shop of Patchogue, Inc., 4 Misc 3d 129 (A), 791 NYS2d 873 [App Term, 9th 10th Jud Dists 2004]. The general standard of proof is a "preponderance of the evidence." Roberge v. Bonner, 185 NY 265, 269, 77 NE 1023. A physician who agrees to perform an operation in a particular manner and fails to do so is liable for the return of any fee paid to him and for other damages which naturally result from his failure to carry out his promise. See Robins v. Finestone, 308 NY 543, 546, 127 NE2d 330. Damages for pain and suffering are not recoverable on a breach of contract action against a doctor. Id.; see also Mitchell v. Spataro, 89 AD2d 599, 452 NYS2d 646 [2nd Dept 1982]. In other words, claimant can get her money back from the defendant plus any other expenses she incurred that flowed directly from the breach, but she cannot get damages for "non-economic loss" such as pain and suffering or emotional distress.
Here, claimant paid defendant $3,500 for the cosmetic part of the surgery, and she has not shown any other monetary damages due to defendant's breach. Therefore, her damages are limited to a refund of the above payment.
The Court notes that the fees paid for the medical, non-cosmetic portions of the surgery were not the subject of this trial and are therefore not addressed herein.
Accordingly, claimant Sofia Katzab is awarded judgment against defendant Nadeem Chaudhry, M.D. in the amount of $3,500 plus interest from October 6, 2004 and the costs and disbursements of this action.
This is the Decision and Order of the Court.