Written by Donnaline Richman, Esq., and Marilyn Schatz, Esq., of Mercado May-Skinner (MMS) and Kathleen Harth of MLMIC Insurance Company, this was originally printed in our Fourth Quarter 2022 issue of The Scope: Medical Edition.
The physician in this case did all the things MLMIC recommends from a risk management perspective, including photo taking, providing and documenting proper informed consent, and following up in response to the patient’s complaints. But when a patient has body dysmorphia, it can be difficult to make the patient happy. Proper screening for this condition is essential.
A 49-year-old married female with a history of multiple cosmetic procedures, including rhinoplasty, blepharoplasties, Kenalog injections, liposuction and facelift, presented to our insured plastic surgeon for correction of midfacial ptosis, which the patient felt was not corrected by a prior facelift. An endoscopic rhytidectomy with transtemporal approach was discussed along with the risk factors, including bleeding, scarring, infection, skin loss and nerve injury. The patient was provided with multiple documents describing the pre- and postoperative instructions as well as a patient information sheet describing the benefits and risks of the procedure. The physician took preoperative photos documenting the patient’s appearance, the patient signed a preoperative informed consent form and the surgery was scheduled.
The patient was medically cleared for surgery, and the plastic surgeon performed the intended surgery under local anesthesia with sedation. Post-op, the patient did well and was discharged home. The op report made no mention of any contact with the patient’s nose or mouth, and there were no complications during the surgery. The patient returned to the office the following day for a bandage change and was healing and felt well. She returned in one week, at which time her sutures were removed, and the patient was noted to be healing well with no sign of infection.
During a follow-up appointment two weeks later, the patient appeared to be happy with the results. The doctor noted that swelling had decreased (although there were no prior notes in the chart regarding swelling). Facial massages were discussed. The patient did not return for her next scheduled visit, but returned the following month, at which time she continued healing and good facial symmetry was achieved, although some facial edema was noted. Kenalog was injected into three areas of both cheeks. The physician took photos at each visit to document the improvement.
Surgical Results Questioned
The patient canceled her next appointment but returned six weeks later, at which time she complained of facial swelling. The incision lines were well healed, and there was good midfacial lift and symmetry. Kenalog was again injected into the cheeks, and the physician noted a slight buccal branch weakness on the left, with aggressive smile, which he advised the patient would not be permanent.
The patient canceled her next appointment but returned the following month, complaining of left temple atrophy and a change in the shape of her nose, along with a left nasal sidewall blue vein. The physician suggested that the left buccal branch weakness was mild and improved, with no appreciable difference. He attributed the temple atrophy to age, advising that this was present prior to surgery. He offered Juvederm injections as a temporary solution, along with Botox to improve the appearance of the mouth, which the patient agreed to, though she was quite unreasonable during this visit.
Patient Confronts Physician
The patient returned one month later, at which time there was no change in the nose from pre-op. There was slight laxity along the jawline and good midface correction. The buccal branch weakness was improving on the left side and was slight. The left nasal bridge vein remained as prior to surgery. The surgeon explained that the surgery was not in this area, and the patient began yelling and screaming. The doctor discussed using AC current stimulation in the area and the possibility of a touch-up facelift in one year, though by this time, the surgeon was concerned about the patient’s body dysmorphism.
The patient was seen the following month. Photographs taken at that visit depicted the patient’s marked facial asymmetry with lifting of the right side of her mouth. The patient did not return to the office after this visit and refused to reschedule her appointment. She called the office four to five times per day during this period and was abusive to the staff. As a result, the physician opted to discharge her from his care, and she was sent a letter of termination.
The patient subsequently filed a lawsuit against the plastic surgeon and his professional corporation alleging lack of informed consent, failure to properly perform the endoscopic facelift surgery, and failing to diagnose and treat a nerve injury. In addition, she claimed battery by suggesting that the plastic surgeon altered the patient’s nose through intrabuccal incisions required for the facelift without her knowledge or consent.
Multiple consultants in various disciplines reviewed this case. Neurology opined that the plaintiff likely suffered a buccal nerve injury, which was a minor concern, and it would be impossible to determine when it occurred. Plastic surgery found no departures from the standard of care and no indication of any alteration to the patient’s nose, which was confirmed by the post-op photographs. In addition, he noted that the transient buccal nerve injury is a recognized and documented low risk of the procedure. Her claims of lack of informed consent were unfounded, as the informed consent was well documented in the chart.
Medical opined that any surgical error would occur immediately, and if the patient were subject to a pinprick examination, she would fail. Psychiatry opined that the patient had a body dysmorphic disorder and that a jury would likely view her as a woman who has a pleasing facial appearance and decide her problems were psychiatric rather than inflicted by our insured. In addition, he questioned why the insured would treat a patient who apparently had this disorder.
A decision was made to proceed to trial, which resulted in a defense verdict. Unfortunately, the plaintiff filed a Notice of Appeal and continued to request extensions to perfect her appeal, which were granted by the court. The plaintiff proceeded pro se and again failed to perfect the appeal in a timely fashion but was successful in filing a Request for Appellate Division Intervention. Although the plaintiff failed to provide the supporting documents, she was granted additional leeway to proceed to oral argument.
A motion to dismiss the appeal was made, to which the plaintiff served a reply brief. While awaiting oral argument, a Civil Appeals Management Program conference was held in which the mediator suggested the plaintiff withdraw her appeal. It became apparent that the plaintiff had a vendetta against the plastic surgeon and would not give up. However, MLMIC eventually prevailed when the appellate division found in favor of the surgeon by upholding the original defense verdict.
Kathleen Harth is an Assistant Vice President, Claims, with MLMIC Insurance Company.
Donnaline Richman, Esq., is an attorney with Mercado May-Skinner Law.
Marilyn Schatz, Esq., is an attorney with Mercado May-Skinner Law.