| Hugh v Ofodile |
| 2011 NY Slip Op 06329 [87 AD3d 508] |
| August 25, 2011 |
| Appellate Division, First Department |
| Allison Yusefa Hugh, Respondent, v Ferdinand Ofodile,M.D., Appellant. |
—[*1] Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph of counsel), forrespondent.
Order, Supreme Court, Bronx County (Alan Saks, J.), entered January 5, 2009, which, after ajury verdict awarding plaintiff $10 million and $50 million for past and future pain and suffering,respectively, granted defendant's CPLR 4404 (a) motion to the extent of directing a new trial onthe issue of damages unless plaintiff stipulated to reduce the awards to $1 million for past painand suffering and $3 million for future pain and suffering, modified, on the facts, to vacate saidawards, and the matter remanded for a new trial on the issue of damages, unless plaintiffstipulates, within 30 days of service of a copy of this order with notice of entry, to reduce theaward for past pain and suffering to $300,000 and the award for future pain and suffering to$300,000, and otherwise affirmed, without costs.
Plaintiff, then age 38 and weighing 380 pounds, underwent gastric bypass surgery, ultimatelylosing 200 pounds. After the surgery, she had excess skin on her abdomen, buttocks, and thighs,which caused considerable discomfort from chafing and difficulty walking, and she soughtsurgery to remove the excess skin from her thighs. Plaintiff consulted with several plastic andreconstructive surgeons. She rejected recommended full body lift surgery because it was tooinvasive, but was interested in a procedure known as the medial thigh lift. Two surgeons withwhom plaintiff consulted in 2003, however, told her that the latter procedure carried a risk ofvaginal widening and labial stretching. Plaintiff rejected the medial thigh lift because of that risk.In 2005, she consulted defendant, who she claims indicated that he would perform a lateral thighlift, making incisions on the outside of her thighs, which would not cause vaginal widening or theflattening of the labia majora often incidental to a medial thigh lift. Plaintiff acknowledged thatdefendant told her of such risks of surgery as lung collapse, thrombosis, and infection, butclaimed that he did not inform her of the risk of vaginal widening or labial distortion.
Defendant ended up performing a medial thigh lift because plaintiff had so much loose skin.Plaintiff was left with flattening of the labia majora and some scarring as a result of woundbreakdown. She did not complain to defendant concerning her condition or the type of surgerythat had been performed, stating afterward, "He already cut me there. At that time I just, I— I couldn't believe it. I just — I just said okay."
Defendant disputed plaintiff's claim that he did not tell her of the possibility of vaginal [*2]widening and labial change incident to his performing a medialthigh lift, which he might have to perform to remove the excess skin from her inner thighs.However, defendant's notes indicate merely that patient "wants thigh lift" and "[needs T-type skinexcision" and "understands that skin will stretch and may meloid." The consent form thatplaintiff signed did not mention a medial thigh lift or say anything about vaginal widening orlabial distortion. Plaintiff also testified that, on the day of surgery, defendant marked only theoutside of her hips; defendant testified that he performed the surgery in accordance with themarkings he had made before it. Defendant testified that, in his opinion, plaintiff's vagina was"essentially" the same both before and after the surgery, without widening, and was within thenormal limits, although the shape was slightly different.
Plaintiff's claims are based on lack of informed consent and deviation from good andaccepted medical practice. As to the lack of informed consent, she avers that she would not haveundergone the thigh lift had she known that defendant was going to perform a medial lift, whichshe knew carried the risk of the vaginal condition from which she now suffers. Althoughplaintiff's expert admitted that this was the most common surgery for a thigh lift, the jury waswithin its right to credit plaintiff's testimony that she would not have undergone the procedureand to conclude that a reasonable person in plaintiff's position would not have consented to orundergone the procedure had she been properly informed. This Court has held that experttestimony concerning what a reasonable person would have done is not necessary to prosecute alack of informed consent claim (see Andersen v Delaney, 269 AD2d 193 [2000];Osorio v Brauner, 242 AD2d 511 [1997], lv denied 91 NY2d 813 [1998]). Thejury had the right to disbelieve defendant's claim that he had properly warned plaintiff.
As to the claim based on a departure from good and accepted medical practice, plaintiff'sexpert testified that the degree of scarring and flattening showed that defendant removed toomuch tissue, although the expert acknowledged that such a result could have occurred withoutany departure. The jury found in plaintiff's favor on both the lack of informed consent claim andthe departure claim. In effect, it found that a reasonable person properly informed would not haveundergone the surgery. It apparently rejected defendant's expert's conclusion that woundbreakdown, caused at least in part by plaintiff's own actions following surgery, was responsiblefor some of the scarring and altered appearance of the labia. Although the evidence of a departurewas not overwhelming, the jury's conclusion does not mandate reversal. A jury verdict should notbe set aside unless it could not have been reached on any fair interpretation of the evidence(Nicastro v Park, 113 AD2d 129 [1985]).
With respect to damages, plaintiff testified that she commenced a sexual relationship afterthe surgery at issue but sometimes experiences discomfort during sexual relations. Plaintiff alsohad complaints of a bladder and yeast infection and uterine prolapse, which led to a referral toDr. Christina Kwon, a urogynecologist. Dr. Kwon examined plaintiff on three occasions in theperiod 2006 through 2009 and noted on each occasion that plaintiff had normal externalgenitalia. At her 2006 visit to Dr. Kwon, plaintiff filled out a form indicating that she had asatisfactory, and usually pain-free, sexual relationship. Dr. Margaret Nachtigall, plaintiff's formergynecologist, testified that the appearance of plaintiff's labia post surgery was not normal, in thatthe labia appeared to be flush with the thighs. Her records however, only note scarring and do notnote an abnormal appearance of the genitalia. Moreover, no physician linked any pain duringsexual relations or the bladder infections to the thigh lift surgery. Nor did any physician reportvaginal widening. The trial court did not dismiss the claim for vaginal or labial pain [*3]although it told plaintiff's counsel that "[t]here really isn't much onthat and I'll assume that it will play a very small role in your damages claim." In fact, there wasn'tany expert testimony at all relating to physical pain other than some tightness during sexualrelations, and that claim for damages therefor should have been limited. Plaintiff's claims foremotional pain as a result of the surgery remain, although it is noted that plaintiff suffered fromsignificant depression before the surgery. However, the dissent's characterization of the photos ofplaintiff's labia as showing a complete distortion is at best extremely subjective and notsupported by the record.
We find that the reduced damages award is excessive to the extent indicated, since it deviatesmaterially from what would be reasonable compensation under the circumstances (see L.S. vHarouche, 260 AD2d 250 [1999] [where record on appeal shows an 18 year old underwentlabial surgery resulting in injuries much more serious than those of the instant plaintiff, and thisCourt sustained reduced verdict of $1,750,000]; Rabinowitz v Elimian, 55 AD3d 813 [2008] [sustaining an awardof $750,000 to plaintiff and her husband where the record shows that plaintiff sustained acomplete disintegration of her sphincter muscle leading to bowel incontinence]; Sutch vYarinsky, 292 AD2d 715 [2002]; Beverly H. v Jewish Hosp. & Med. Ctr. ofBrooklyn, 135 AD2d 497, 497-498 [1987]). In these cases, the plaintiffs sustained injuriesmuch more severe than those sustained by the instant plaintiff. Concur—Tom, J.P.,Moskowitz and Freedman, JJ.
Catterson and Richter, JJ., dissent in part in a memorandum by Richter, J., as follows: Idissent in part, because I believe the majority has reduced the damages for future pain andsuffering to a level that cannot be considered reasonable compensation under the circumstances,although I agree with the reduction to $300,000 for past pain and suffering. I would reduce theaward for future pain and suffering to $1,300,000.
After surgery, plaintiff discovered incisions along her groin and on the insides of her thighs,and no incisions along the outside of her thighs where the doctor had marked her before surgery.Just over a week after the thigh lift, plaintiff was hospitalized for 11 days because the woundsfrom the incisions had broken down, and she had developed an infection. Specifically, herwounds had opened up, were emitting a discharge, and continued to bleed profusely. As a result,plaintiff's external labia became tethered as the skin around the vagina was pulled towards thewound. Plaintiff's vagina is now permanently deformed and disfigured so that the labia appears tobe flush with her thighs.
Before the thigh lift, plaintiff enjoyed biking, walking, modeling and socializing. She hadrecently started her own event planning business, which required her to network and socialize ona regular basis. However, plaintiff's life changed after the thigh lift left her permanently deformedand disfigured. She testified that she no longer wished to be out with other people, which was abig part of her business, and that she experienced deep sadness and depression. Subsequently,plaintiff stopped modeling and, in 2006, dissolved her business. More importantly, plaintifftestified that she experienced pain and discomfort during sexual relations. Specifically, she felt apulling and tightness whenever she attempted sexual activity. Although plaintiff was not in arelationship prior to the thigh lift, she began a relationship thereafter, but it was difficult tomaintain due to the pain she experienced during intimacy. Plaintiff testified that [*4]as a result of her intimacy problems, the relationship assumed anon-again, off-again status, only adding to her emotional pain.
Moreover, plaintiff's deformity cannot be corrected by more surgery. After the thigh lift,plaintiff inquired about corrective surgery; she was told by one doctor to leave her conditionalone and move on with her life, as there was nothing that could be done. Although plaintiff'sexpert doctor informed her that an experimental surgery option might be available, even he wasdoubtful as to the likelihood of its success. It is clear that the irreversible nature of plaintiff'sdeformity continues to negatively impact her life in a variety of ways.
In addition to plaintiff's testimony describing her now deformed vagina and the resultingpain, she submitted photographs to show the major disfigurement that resulted from the surgery.The graphic photos show how the skin pulled completely away from her vagina, resulting in thetotal distortion of both the labia minora and the labia majora. Plaintiff's expert testified, and thepictures show, that the mound of tissue that was once plaintiff's labia minor and majora is nowflattened just like regular skin.
The majority incorrectly suggests that it is subjective to describe the photographs as showinga horrible injury. However, plaintiff's gynecologist testified at trial that before the surgery,plaintiff had no labial abnormalities. After surgery, the doctor said the area was flat, like a scar,and when shown the photos, stated it was not a normal vagina. The majority, in questioning theextent of the injury, gives inadequate consideration to the fact that the jury had an opportunity toview the photos and was entitled to credit the gynecologist's testimony that the appearance of thevagina was not normal.
The majority gives short shrift to plaintiff's testimony that sexual relations post surgery werepainful, focusing instead on a passing comment made by the trial court when it denieddefendant's motion to dismiss. It was entirely reasonable for the jury to conclude that painfulsexual relations for someone aged 40 could cause significant future pain and suffering. Themajority also notes that plaintiff was depressed, and plaintiff explained that this was due in partto her mother's passing away. But, whatever depression plaintiff had before surgery, it did notprevent her from functioning, and she had started her own business. It is only since the surgery,which resulted in genital disfigurement, something that can have a lifelong impact, that plaintiffis reluctant to go out and socialize with other people.
The cases relied on by the majority are distinguishable and highlight why plaintiff hereshould receive a higher amount. In Sutch v Yarinsky (292 AD2d 715 [2002]), the juryawarded the plaintiff $800,000 as compensation for a deformed breast that resulted from abilateral breast reduction. Notably, the plaintiff in Sutch had the option ofsemi-reconstructive surgery to improve the appearance of her breast and nipple. Likewise, inBeverly H. v Jewish Hosp. & Med. Ctr. of Brooklyn (135 AD2d 497 [1987]), the juryawarded the plaintiff $1,500,000, which the trial court reduced to $700,000, as compensation forthe recto vaginal fistula that developed as a result of a midline episiotomy performed in an effortto shorten the plaintiff's time in labor. There too, the plaintiff had the option of correctivesurgery, and by the time the case reached the Second Department, her injury had beensubstantially corrected.
Plaintiff here does not have the option of corrective surgery. She testified that one doctorinformed her that there may be an experimental procedure available, but that it may not besuccessful. She also testified that another doctor told her there was nothing that could be done.The fact that plaintiff does not have the option of corrective surgery increases the compensationfor future pain and suffering that would be reasonable, and thus warrants a higher damages [*5]award. Additionally, plaintiff was only 40 years old when theresulting disfigurement occurred. She has a long life ahead of her, yet she will now have to faceintimacy problems and pain during sexual relations for several decades.
It is difficult to find a case with analogous facts given the nature of plaintiff's deformity andthe lack of a surgical remedy. Nevertheless, an examination of cases decided several years agoshows that the adjusted award here should be higher than the amount set by the majority (seee.g. Suria v Shiffman, 107 AD2d 309 [1985], mod on other grounds 67 NY2d 87[1986] [plaintiff was awarded $800,000 as compensation for permanent breast deformity, as wellas swelling, infections, and discoloration resulting from improper silicone injections]). Moreover,the award of $1,300,000 for future pain and suffering is still a significant reduction from thejury's original award, and from the trial court's own reduction.