Cosmetic surgery on patients with body dysmorphic disorder: cutting the tie that binds.
Cosmetic surgery performed on patients with body dysmorphic disorder ("BDD")--a mental disorder where individuals are preoccupied with imagined or exaggerated physical flaws-raises issues of concern to medical, legal, and mental health professionals. There is considerable disagreement regarding when a plastic surgeon can appropriately perform an elective procedure on an individual with BDD, whether and when legal liability should attach to this surgery, and what sanctions should be available if legal liability is appropriate. This Article proposes guidelines for this surgery that respect the autonomy of these patients while protecting them from unscrupulous doctors preying on their disorder.
II. BDD and Cosmetic Surgery
A. Body Dysmorphic Disorder
BDD has been classified as a somatoform disorder characterized by an obsessive preoccupation with an imagined or exaggerated defect in one's physical appearance. (2) This preoccupation, the manifestations of which typically first appear during adolescence or early adulthood, causes significant distress and interferes with day-to-day functioning. (3) For a BDD diagnosis, the preoccupation must not be attributable to another psychiatric disorder (such as an eating disorder). (4) Approximately one to two percent of Americans are diagnosed with BDD, with women and men equally likely to experience the disorder. (5)
Any body part can become the subject of obsession, but skin, hair, and nose are the most frequent areas of focus. (6) Men are more likely to become preoccupied with their genitals, height, hair, and body build, while women tend to be concerned with their weight, hips, legs, and breasts. (7) Individuals with BDD will report on average concerns about five to seven different aspects of their appearance during their lifetime. (8) The vast majority seek some form of treatment to fix their perceived flaws. (9) An estimated 30% to 40% of them undergo at least one surgical procedure, 50% to 60% obtain dermatological services, and 10% receive cosmetic dental treatment. (10) This Article's focus is individuals with BDD who pursue major elective cosmetic surgery.
B. Cosmetic Surgery in General
In recent years, the stigma and cost once associated with undergoing plastic surgery has dissipated, and a wide array of procedures--formerly available to only a small, wealthy segment of society--has become relatively mainstream. Many of the medical professionals performing these procedures credit reality television shows and positive media coverage as driving the heightened demand for cosmetic work. (11)
Further, technological improvements have reduced (although not eliminated) scarring and recovery time, while the prospect of receiving significant fees and immediate payment rather than waiting for insurance claims to be processed has greatly expanded the number of physicians who make cosmetic surgery the focus of their practice. (12) Nearly two million cosmetic surgeries were performed in 2008, (13) with over ten million total cosmetic treatments performed when minimally invasive procedures like Botox injections and chemical peels are included. (14) Breast augmentation, liposuction, eyelid surgery, abdominoplasty (a "tummy tuck"), and breast reduction were the most popular surgeries for women, (15) while men, who now constitute approximately one fifth of the patient base, (16) favored liposuction, rhinoplasty (a "nose job"), eyelid surgery, liposuction, male breast reduction, and hair transplantation. (17)
Notwithstanding the increasing normalization of cosmetic surgery in popular culture, concerns have been raised that cosmetic surgery may be performed excessively or unnecessarily, (18) and recent studies have identified heretofore unrecognized long-term psychological hazards associated with the procedures. This research reaffirms the seriousness of undergoing these elective operations and suggests that mental health issues may be associated with the seeking of cosmetic surgery.
For example, cosmetic surgery patients tend to have poorer body image and are more likely to be receiving psychiatric medication. (19) One study showed 18% of cosmetic surgery patients were on antidepressants, compared to only 5% of a control group. (20) Although many plastic surgery patients tell their doctors that they are satisfied with their experience and short-term results, no studies have examined body image perceptions two years or more after the surgery. (21) Furthermore, five separate studies, involving tens of thousands of patients, have found that individuals who receive cosmetic operations have a significantly increased risk for suicide later in life. (22) The correlation is most pronounced in women with breast implants, where the risk of suicide is 4. (5 times higher ten to nineteen years after surgery, and six times higher twenty years after surgery. (23) Moreover, the risk of death related to substance abuse or a mental illness is three times greater for a breast augmentation patient. (24)
The author of one of the studies speculated that many individuals who underwent cosmetic surgery had psychological problems, such as BDD, before their surgery, which may have been exacerbated following the procedure. (25) Noting that approximately 6% to 15% of all cosmetic surgery patients suffer from BDD, some psychologists believe the incidence of this disorder may help to explain the increased suicide risk. (26) One researcher concluded that these findings "'warrant increased screening, counseling and perhaps post-implant monitoring of women seeking cosmetic breast implants.'" (27)
C. Cosmetic Surgery and Patients with BDD
Although a substantial portion of patients are pleased with the results of their cosmetic surgery, complaints about these operations remain fairly common. (28) This dissatisfaction has been attributed to insufficient information dissemination from physician to patient prior to the procedure, resulting in misguided expectations about the eventual outcome. (29) Dissatisfaction will likely be compounded in patients with BDD, whose perceptions and expectations are distorted even before the initial doctor/patient consultation.
It has been noted, for example, that "cosmetic medical treatments typically produce no change [in] or, even worse, an exacerbation of [BDD] symptoms." (30) One study found that 91% of procedures provided no reduction in BDD symptoms; and even patients who thought their "defect" looked improved often remained dissatisfied either because they feared their "flaw" would reappear or because their anxiety simply shifted toward another part of their body. (31) This "substitution" phenomenon is a particular problem among BDD cosmetic surgery patients and contributes to this population's high rate of multiple or repeat procedures. (32) For patients with BDD, "not even the most perfect surgical outcome is capable of resolving [their] psychiatric disorder." (33)
At the same time, studies have shown that about two-thirds of patients with BDD who request surgery for imagined or slight defects are able to obtain it, and in some cases they are able to repeatedly receive elective procedures, even though they rarely benefit from the operations insofar as they continue to perceive themselves as suffering from physical flaws. (34) Indeed, the severity of BDD often worsens following surgery, with patient satisfaction decreasing upon each additional procedure. (35)
Cosmetic surgeons often acknowledge that patients with BDD have poor postoperative outcomes, but their estimates of the total number of patients with BDD that they see is significantly lower than prevalence studies indicate. (36) Moreover, only 30% of cosmetic surgeons believe BDD is a contraindication for an elective procedure. (37)
In another study, psychiatric screening was conducted on fifty-six patients (forty-five women, eleven men) who visited a plastic surgery clinic for cosmetic procedures. (38) The psychiatric history of each patient was obtained and an investigation made of the possible presence and severity of BDD. (39) The researchers diagnosed BDD in 53% of the patients---45% of the men and 55% of the women--although for most (82%) of the patients where BDD was diagnosed, it was classified as only a "mild" manifestation of the disorder. (40) To their credit, the doctors in this clinic refused to schedule for surgery patients with moderate to severe BDD, referring them instead for psychiatric treatment. Further, although surgeries were conducted on patients who presented with mild BDD, such operations occurred only after approval by a psychiatrist, who also followed up with the patient as part of the postoperative care plan. (41) The study's authors, however, insisted that elaborate preoperative psychological evaluations are unnecessary as a matter of course, as "[s]evere BDD is ... a disorder that can hardly be missed during a thorough presurgical" consultation. (42)
Nevertheless, the authors did note the importance of "plastic surgeon[s] be[ing] adequately trained to understand the psychological implications associated with cosmetic surgery" (43) and stressed the value of "a brief psychological screening to investigate the motivations and expectations of patients, their psychiatric condition and history, and their perception of their body image." (44) Because BDD can distort a patient's competency to consent to treatment, the authors also asserted that cosmetic surgeons should "acquire the knowledge and expertise required to evaluate [their] patients carefully" and "refuse the services requested in dubious cases." (45)
In a separate study, in which patients with BDD expressed a somewhat higher rate of subjective satisfaction with the results of their cosmetic procedures, the researchers nevertheless also concluded that a BDD diagnosis is a contraindication for cosmetic surgery. (46) Following surgery, these patients experienced no significant reduction in many symptoms specifically related to their BDD. (47) Furthermore, five years after the surgery all but one of the patients still had clinically diagnosable BDD, albeit with a new site of preoccupation. (48) In addition, these patients exhibited a pervasive comorbidity of other psychological disorders at the five-year follow-up. (49)
BDD may not be readily identifiable in some surgical candidates, which further underscores the need for careful screening. Dissatisfaction with one's body image is thought to be pervasive throughout the general population, although BDD involves a greater degree of appearance-related anxiety or disgust. (50) One study, for instance, found that cosmetic surgery candidates as a group did not express more dissatisfaction, criticism, or preoccupation with their overall appearance than Americans in general, although they did display significantly greater dissatisfaction with the particular body part for which they were considering cosmetic surgery. (51) Of the surgical candidates they examined, 7% met the diagnostic criteria for BDD. (52)
Further complicating matters, "a physical feature that appears to be within the range of normal variation to the untrained eye may be judged as an observable and correctable defect by the plastic surgeon." (53) Thus, the doctor may not realize the extent to which the patient's self-image is distorted if the doctor notices subtle ways in which the body part could be improved. The physician's ability to discern the presence of BDD can be even more obscured when the surgical goal is an amorphous desire to "enhance" rather than to "fix," as may be the case with breast implants. As a result, it has been argued that, in assessing whether a patient has BDD, rather than focusing on whether the body part for which surgery is sought appears abnormal, the doctor should instead consider the patient's "degree of emotional distress and resulting behavioral impairment." (54)
In light of this body of research on BDD, a consensus has emerged that cosmetic surgery should not be readily available to individuals with a known or obvious case of severe BDD. The next issue is whether cosmetic surgeons have a responsibility to discover and diagnose BDD in their patients and to refuse or actively dissuade a patient with BDD from surgery.
III. Potential Causes of Action for Inappropriately Performing Cosmetic Surgery on a Patient with BDD (55)
In the medical field, the professional norms that guide physicians' daily behavior frequently form the basis for establishing their legal responsibilities. (56) These legal responsibilities typically fall into two categories. First, the physician must practice medicine in a manner that conforms to what is customary conduct among physicians of the same specialty; in the context of medical malpractice litigation, the expert testimony of another doctor is critical to establishing this requisite standard of care. (57) Second, before beginning a medical procedure, the physician must obtain informed consent from the patient, which obligates a doctor to disclose the material benefits and risks associated with the procedure. (58) While the courts will not allow the medical profession to perpetrate manifest injustice under the guise of self-regulation, (59) they rely heavily on the results of medical research, clinical practice, and professional norms in discerning the applicable standard of care and requisite disclosures.
A. Negligent Nondisclosure and Informed Consent (60)
Negligent nondisclosure refers specifically to a physician's failure to provide the patient with adequate information prior to a medical procedure, whereas failure to obtain informed consent can be broader, encompassing not only a doctor's failure to disclose information, but also a patient's incapacity to provide the requisite legal consent. (61) The two causes of action are sometimes conflated, but an informed consent claim raises issues that extend beyond negligent nondisclosure.
1. The Doctrine of Informed Consent
(a) Common law approach. The doctrine of informed consent in the medical context flows from the common law principle that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages."62 Although there are variations in the applicable law between states, generally physicians are required to obtain informed consent from a patient before commencing a medical procedure. Typically this includes disclosing to the patient the nature of the proposed treatment, all material or reasonably foreseeable risks associated with such treatment, possible alternative treatments, and the probable consequences of refusing treatment altogether. (63)
Depending on the law of the jurisdiction, cosmetic surgeons will be subject to one of two legal standards when determining whether informed consent was obtained. Some states require doctors to disclose information that a "reasonable medical practitioner" would provide to a patient under similar circumstances. (64) Other states mandate that the doctor disclose information that a "reasonable patient" would want to know. (65)
As discussed below, there are few judicial rulings addressing what information a doctor must convey to be deemed to have obtained informed consent prior to performing cosmetic surgery. But even scholars who question the "idealist" conception of informed consent-which would require extensive disclosures for virtually all medical procedures,66 and who argue instead for a more stream-lined approach--recognize that elective cosmetic surgery implicates special concerns that may necessitate heightened disclosure. (67)
In general, a failure to obtain informed consent cause of action centers on the nature of the communications made by the physician to the patient prior to the surgery. (68) Plaintiffs in informed consent cases typically must demonstrate that (1) an unrevealed risk that should have been made known actually materializes, (2) the risk that was not disclosed resulted in harm to the patient, and (3) if the doctor had disclosed the risk, the patient would not have submitted to the procedure. (69) The third prong may be evaluated under an objective rather than a subjective standard, asking what a reasonable person in the plaintiff's position would have done if adequately informed of all significant risks. (70)
There is at least a theoretical distinction between a physician's "duty to disclose" and a patient's "informed consent." While the former focuses on the doctor's "performance," the latter addresses the "patient's comprehension." (71) In some jurisdictions, physicians meet their responsibility when they make "a reasonable effort to convey sufficient information, [even] though the patient, without fault of the physician, may not fully grasp it." (72) Under this rule, if patients do not disclose their mental illness and its presence is not obvious, physicians will not be liable for failing to address it and take it into account in securing informed consent. But even pursuant to this approach, the question remains whether a cosmetic surgeon--whose specialty is clearly distinct from psychiatry--ought to be able or take steps to detect an undisclosed (and sometimes actively concealed) psychiatric disorder such as BDD in someone who is seeking elective cosmetic surgery.
(b) Body Dysmorphic Disorder and competency. Cosmetic surgeons should have a general awareness of BDD due to its disproportionate presence in cosmetic surgery patients. However, it may be difficult to detect its presence in a given patient because to some degree virtually all of a cosmetic surgeon's patients share one of the key aspects of the BDD diagnosis--namely, an intense dissatisfaction with a particular part of the body (as demonstrated by the patient's willingness to pay a large sum of money to "fix" it). Moreover, with respect to informed consent related to elective treatments (which can be minimally invasive and are by definition medically unnecessary), there typically is a presumption in the doctor's favor that the doctor communicated the risks and benefits of the procedure and that the patient adequately comprehended these disclosures. (73)
However, due to the high prevalence of BDD among the cosmetic surgery population, the normative validity of this presumption is questionable. The cosmetic surgeon is in a unique position to ascertain any limitations to a patient's comprehension, as the physician has "knowledge of, or ability to learn [about], [the] patient's background and current condition." (74) Arguably, therefore, the burden should be placed on cosmetic surgeons to explore each patient's motivation in obtaining an operation, and they should shape accordingly their disclosures and their assessment of whether their patients have understood these disclosures. Although some jurisdictions do indeed impose a "subjective" standard that assesses whether a given patient comprehended physician disclosures, other jurisdictions employ an "objective" standard that focuses on whether a "reasonable patient"--as opposed to the actual patient--would comprehend the information as it was presented. Arguably this latter standard would not require a doctor to shape the informed consent process to account for the possibility that a particular patient's consent was driven by her or his BDD and was not a rational, legally valid decision. (75) Yet, even under this objective analysis, due to the prevalence of BDD in cosmetic surgery patients, and for reasons relating to both medical ethics and legal self-protection, cosmetic surgeons should routinely be cognizant of its possible presence in their patients and shape their informed consent procedures accordingly. (76)
Specifically, cosmetic surgeons ought to examine prospective patients' surgical and psychiatric histories, as well as inquire into their surgical expectations and body image, in order to identify patients with BDD and to require them to obtain psychological counseling and clearance from a mental health professional before proceeding with any operation. While a physician "obviously cannot divulge any [risks] of which he may be unaware," the full scope of a doctor's duties necessitates that the cosmetic surgeon anticipate the possible presence of BDD in surgical candidates when obtaining informed consent. (77)
2. Policies Underlying Informed Consent
In arriving at the standard described above for assessing the adequacy of the informed consent obtained from a patient who is contemplating cosmetic surgery, three principles underpinning the doctrine of informed consent were taken into account: (1) patients' right to bodily autonomy, (2) potential applicable conflicts of interest, and (3) imbalances in the information and power that distinguish patients and physicians.
(a) Patients' right to autonomy. A fundamental aspect of informed consent in medical decision-making is the principle of autonomy, which holds that mature individuals have a basic right to self-determination, especially with regard to the private and intimate decisions affecting their bodily integrity. (78) This principle favors allowing mature individuals to undergo even extreme forms or excessive amounts of plastic surgery as long as they are fully apprised of the material risks beforehand and understand the possible physical and psychological repercussions of their decision.
Importantly, however, there is a philosophical distinction to be made between a "negative right" to be free from unwanted interference or coercion, and a "positive right" to do or receive something. (79) Many scholars find this negative right to be entitled to greater weight. (80) With respect to plastic surgery, the doctrine of informed consent clearly prohibits subjecting a person to an unwanted or misunderstood surgical procedure. However, this negative right to be free from having another person operate on one's body under coercive or misleading conditions is not necessarily accompanied by a positive right of access to any form of cosmetic surgery performed by whichever doctor the patient might desire. Moreover, doctors have a corresponding right of autonomy to not be forced to perform surgical procedures when they believe the benefits do not outweigh the risks to the patient.
One could argue that if both the patient and the doctor are competent, willing, and fully cognizant of the possible consequences, they should be able to proceed with any plastic surgery on which they agree, free from governmental, organizational, or societal constraints. American case law, however, consistently recognizes that sometimes broader public interests can trump personal autonomy. (81) Thus, under certain circumstances, the autonomy principle may not be sufficient to sustain a patient's desire for a cosmetic procedure.
(b) Conflicts of interest. A second rationale for requiring informed consent be obtained in the healthcare context is to diminish the influence of any conflicts of interest that may inappropriately shape a physician's treatment recommendations. (82) Imposing disclosure requirements can help to constrain incentives that physicians may face to maximize their revenue by increasing the quantity and complexity of the procedures they perform. Physicians may be tempted to downplay the risks of surgery, overstate what can be accomplished, and even suggest "complementary" procedures to address other parts of the body that the patient might not have considered otherwise. (83)
These perverse incentives can be countered by ensuring patients understand the relative merits and risks of any proposed treatment. (84) Imposing informed consent requirements that mandate the actual comprehension and rational evaluation of disclosed risks and foreseeable results can help to protect patients with BDD from receiving unnecessary and contraindicated cosmetic surgery.
(c) Power and information imbalances. A final justification for the informed consent requirement in the context of healthcare is to prevent situations where a patient acquiesces to a physician's treatment recommendations, a decision the patient later regrets, because at the decision-making point the patient believed--based on her comparatively limited knowledge--that she was incapable of adequately assessing her condition and options and thus simply deferred to the physician's proposal. This deferral to the physician's judgment can result from a patient's sense that she does not have sufficient information about or understanding of her treatment choices or that she must accept the physician's recommendation because she has little choice in the matter. Some argue that these information and bargaining power imbalances are inherent in the doctor-patient relationship, although physician disclosure obligations and required physician-patient dialogue can act as a check or counterbalance to the disparity. (85) Regardless of whether knowledge and power inequalities are as pervasive and pernicious in modern medicine generally as this rationale implies, plastic surgery for patients with BDD indubitably raises these concerns.
Patients with clear cases of BDD who are impelled by their mental disorder to seek cosmetic surgery could find few doctors willing to provide procedures for which there is little medical justification. As a result, these patients may have little bargaining power relative to any physician that they are able to locate who is willing to undertake the surgery. (86) Since physicians may be tempted by the profits that they can make from these procedures, imposing the checks described in this Article can help to ensure that physicians proceed only when truly informed consent is provided.
An additional and significant barrier to achieving truly informed patient decision-making in these cases is that these patients' mental disorder may render them incapable of appreciating their situation and rationally evaluating their treatment options. Patients with BDD who have been through multiple operations, or who have obsessively researched the procedures that can be performed on a "flawed" body part, (87) may have considerable factual knowledge regarding their treatment options but not the requisite rational understanding. A prudent plastic surgeon whose patient can recite the risks associated with a given procedure should not assume that the patient has met the requirements for informed consent. A plastic surgery "addict" may have discovered that displaying familiarity with the risks of surgery and the pre- and post-operative procedures can be an effective way to assuage a doctor's latent concerns about the securing of informed consent, thereby making the doctor more inclined to perform an operation without fully investigating the patient's surgical history or psychological profile.
At the same time, some patients with BDD may be as capable of providing informed consent as "normal" individuals who seek plastic surgery. Nevertheless, when a prospective patient already has undergone multiple cosmetic procedures in the past, not only should surgeons be sure to disclose all the information they would to someone having a cosmetic operation for the first time, they should also be on heightened alert to the possible presence of BDD symptoms and undertake appropriate countermeasures as discussed above. (88)
3. Assuming the Risk
When patients appear to have voluntarily undergone extreme, extensive, or unnecessary cosmetic procedures that they later regret, a jury (89) may not be sympathetic to a subsequent legal claim that they were not able to provide the requisite informed consent for the surgery. Jurors may conclude that the patient assumed the risks of the surgery-including the risk that they would later regret having the procedure done--if there is evidence that the doctor conveyed the risks of the procedure in a manner that a reasonable person would understand. However, if the patient can demonstrate that the doctor was aware of the patient's mental condition and recognized that it was likely to distort the patient's understanding of the information conveyed and the patient's decision-making process, the jury--whether guided by judicial directions based on existing case law or its own collective sense of justice--may expect the doctor to do more than just technically comply with the legal standard and instead to take any additional steps needed to ensure that the patient had both the necessary information and the decision-making capacity to consent to the procedure's risks.
Although there is little if any case law that directly addresses whether a plaintiff with BDD will be found to have assumed the risk of cosmetic surgery and thus be denied the claim that she lacked the ability to provide the requisite informed consent prior to this surgery, an analogous assumption of risk has been imputed to cigarette smokers in defeating their claims against cigarette manufacturers for the harm they experienced as a result of their cigarette smoking. (90) It has been contended that juries have refused to impose liability upon a determination that the cigarette smokers assumed the risk of this smoking, reasoning that (1) at the time of consumption, the smokers were adequately informed of the relevant risks; (2)"widespread public discussion ... and growing social stigma further signaled this risk"; (3) the smokers' choice to assume these risks was voluntary, rather than compelled by addiction; (4) the smokers had rejected viable alternatives to the harm-causing activity for which they were now suing; and (5) they "received something of value--namely, physical and psychological satisfaction--in return for their choice." (91)
These factors also might be present in a cause of action brought by a patient against a physician for a failure to obtain informed consent prior to cosmetic surgery. Specifically, a jury could reasonably determine that (1) even minimal or formalistic physician compliance with informed consent obligations should put a reasonably prudent patient on notice that the surgery is not risk-free; (2) public discussion, debate, and controversy over cosmetic surgery have made the public widely aware of these risks; (92) (3) the urge for plastic surgery may seem more analogous to cigarette use, which reflects a voluntary act, than a mental disorder where behavior does not appear to be within the patient's control;93 (4) most people choose alternatives less drastic than surgery if they want to change their appearance to better suit their aesthetic preferences; and (5) those who elect to undertake the pain and expense of cosmetic surgery do so to gain the benefit of appeasing their own vanity or winning increased social or sexual approval and desirability.
Despite the superficial appeal of this parallel, however, individuals with BDD who have sought cosmetic surgery, however, should not be viewed as falling within this categorization. As individuals who suffer from a formally recognized psychiatric disorder, minimal or formalistic disclosures by a physician are not likely to provide them with adequate notice of the risks they face, as their mental disorder may lead them to ignore or distort these warnings. Similarly, to the extent that general public notice of these risks does exist, it may have little actual impact on the decision-making process of the BDD population. In addition, the obsessions and compulsions that mark this disorder may make the behavior of surgery seekers relatively involuntary and, moreover, they may be unable to avail themselves of less drastic alternatives. Finally, BDD sufferers may gain little benefit from their surgery as their disorder may leave them perpetually dissatisfied with the results.
4. The Case of Lynn G. v. Hugo
There is some judicial precedent for requiring doctors to implement the types of checks described above before providing cosmetic surgery to a patient who provides indications that they suffer from BDD. Because the New York case of Lynn G. v. Hugo94 is the only significant case to date to directly address the legal implications regarding the obtaining of informed consent for cosmetic surgery from a patient with BDD, it is discussed in some detail here.
Over the course of six years, the plaintiff in Lynn G. visited the defendant Dr. Norman Hugo, a plastic surgeon, approximately fifty times to discuss various cosmetic procedures. Dr. Hugo performed a wide range of elective cosmetic procedures on her, including eyelid surgery, liposuction on several parts of her body and face, eyebrow tattooing, and Botox injections.95 At issue in the lawsuit was an aggressive course of liposuction and a breast lift, followed nine months later by further liposuction and an abdominoplasty (commonly known as a "tummy tuck"). (96) Dissatisfied with the final appearance of her stomach, particularly the scarring thereon, the plaintiff alleged, inter alia, that she had been incapable of giving informed consent to this surgery because she suffered from BDD. (97) The plaintiff's theory was that because the doctor was aware that she had been receiving psychiatric treatment, including medication, for depression, and because she also had an "unusually high demand for surgical correction of slight or imagined defects," the doctor should have recognized "the presence of a mental disorder that fueled her demand for unnecessary surgery and prevented her from assessing the risks and benefits of such surgery." (98) She argued that under these circumstances, at a minimum, the doctor should have consulted with a mental health professional before performing additional invasive procedures. (99)
The doctor responded by filing a motion for summary judgment. He contended that the allegations of the plaintiff, even if true, did not--under existing law--provide the necessary foundation for a cause of action for failure to obtain informed consent and thus the lawsuit should be dismissed. Both the trial court and an intermediate court of appeals rejected the defendant's motion. Although ultimately the high court of New York reversed these rulings and granted the defendant's motion, the substance of its ruling indicated that its position would have been different if the plaintiff had alleged facts demonstrating that the physician knew of her psychiatric disorder.
Before addressing the high court's ruling, it is worth noting the analysis of the intermediate court of appeals. This court stressed that a cause of action for failure to obtain informed consent is not limited to when a physician has coerced or pressured a patient into making a medical decision, but can also "be predicated on [a] doctor's failure to disclose a complete range of options." The court found no reason to impose "a less stringent disclosure standard" with regard to informed consent obtained prior to undertaking elective cosmetic surgery. The court emphasized that even though a patient's course of treatment
may be motivated by subjective vanity rather than objective physical impairment, once the patient has decided that this feature is a problem that needs to be corrected, the doctor should have no less of a duty to disclose the risk of any treatment he could offer. In other words, while the patient's dissatisfaction with her body may be a matter of taste, the choice of treatments and the expected outcomes are governed by objective medical principles. Disclosure of less invasive alternatives is merely one aspect of the doctor's general duty to present a full picture of the risks and benefits. (100)
The court indicated that the dialogue between a doctor and a patient about alternatives for addressing a perceived flaw in bodily appearance is especially crucial if the doctor suspects or should have suspected that the patient suffers from BDD. The court added that
[the plaintiff] is not arguing that her depression made her incapable of entering into a contract, nor that BDD renders a person unable to give informed consent to surgery in general. Nowhere is it urged that this court should impose a general rule requiring pre-operative psychiatric referral of all plastic surgery candidates, or even of all such candidates who have taken antidepressants. She merely claims that her mental state affected her ability to assess the risks and benefits of one particular type of treatment, namely elective cosmetic surgery, because persons with this disorder have irrationally exaggerated perceptions of their bodily imperfections. Particularly in the area of cosmetic surgery, when there is no medical need for the operation and only the patient's subjective aesthetic opinion determines her view of whether surgery is to be undertaken, a physician should have some responsibility to provide objective guidance to a patient whose capacity for self-assessment is clearly disordered. (101)
In turn, the appellate court criticized the physician's "laissez-faire" approach. The court declared that when a "patient's judgment appears to be impaired," it does not suffice to merely "present patients with the options and let them decide whether to undergo a procedure." (102) In the case before it, the court noted that prior to her cosmetic surgery the patient had disclosed that she was taking antidepressant medications, suffered from extreme nervousness or anxiety, and had taken a prescription medication for migraines. Her history of depression also had been noted in her medical records. The court determined that this medical history, when coupled with the patient's "extraordinary eagerness for surgical alteration ... raise[d], 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 [the patient]." (103)
In addition, the court found it questionable that the physician showed "an almost complete lack of curiosity about his patient's mental state," asking no follow-up questions about the related information that he received. (104) The court was particularly troubled by the doctor's testimony that he had never heard of BDD, which the court characterized as "a disturbing confession of ignorance," adding that "[o]ne might expect a plastic surgeon to be cognizant of an established psychiatric condition that affects body image and could impair a patient's ability properly to appraise and consent to cosmetic surgery." (105) According to the court, the responsibility to supply adequate disclosure remains with each treating doctor, even if other physicians are or have been involved in the care of the patient. The fact that other practitioners may have disclosed substantially similar information to a patient in the past does not relieve the acting cosmetic surgeon of her obligation to adequately inform and obtain competent consent personally before rendering her particular services to the patient. (106) Based on the allegations in the Lynn G. case, the appellate court was willing to let the plaintiff proceed with her claim that "Dr. Hugo should have consulted a mental health professional for advice about how to proceed, or otherwise attempted to explore his patient's psychiatric history, once her behavior raised warning signals that her judgment was impaired." (107)
In issuing this ruling, the court was careful to avoid endorsing a position that would have curtailed the ability of patients with a mental disorder from obtaining voluntary medical treatment or retaining autonomy over their healthcare. Such could have been the effect of a flat statement by the court that depression makes individuals per se incapable of entering into a contract, or that BDD by itself renders patients incompetent to give informed consent to healthcare. (108) A similar rationale was likely behind its statement that a pre-operative psychiatric referral was not required for all plastic surgery candidates, or even all such candidates who had been treated for depression in the past. (109) The appellate court was apparently willing to embrace the plaintiff's position because it was limited to one particular type of disorder (i.e., BDD), the effects of which--"irrationally exaggerated perceptions of [one's] bodily imperfections"-were pertinent and material to this particular type of treatment (i.e., elective cosmetic surgery). (110)
The court also appeared to be swayed by the physician's indifference to the well-being of his patient. This dismissal of the medical facts and warning signs that should have been obvious to a physician specializing in cosmetic surgery led the court to warn physicians that when a patient has a relevant history of mental illness (in the Lynn G. case, depression and anxiety), and the surrounding circumstances suggest an abnormal desire for surgery, they have a legal responsibility to either consult with a mental health professional on how to proceed or to personally explore the potential impact the patient's mental disorder could have on her understanding of the risks and benefits of treatment and her decision-making capacity. As awareness of BDD becomes more prevalent in the medical community, plastic surgeons who remain ignorant of the disorder's symptomology or willfully blind to its manifestations within their patient population are likely to expose themselves to liability when proceeding with treatment despite the presence of relatively obvious "warning signals."
Although the New York Court of Appeals later reversed the ruling described above, courts in other states (for which the decision is not binding precedent) may find the lower court's reasoning persuasive. In addition, the New York high court, although siding with the physician in this case, indicated that it was prepared to hold accountable other physicians who provide cosmetic surgery to patients with BDD if they negligently ignore related "warning signals." The New York Court of Appeals ruled that Dr. Hugo had made a prima facie showing of having obtained informed consent when he introduced evidence establishing that (1) he had informed the plaintiff of the risks associated with the medical procedures, including the risk of scarring, and (2) the patient had signed written consent forms indicating her understanding of these risks. (111)
Moreover, the court noted the existence of evidence that the doctor did not deviate from acceptable medical practice when he did not refer the plaintiff to a psychiatrist. In particular, a plastic surgeon who had reviewed the records at the defendant's request testified that "nothing in plaintiff's medical history indicated that she suffered from BDD, nor was her use of antidepressant medication sufficient to alert defendant to this condition." (112) Although the plaintiff had submitted her own affidavits from a plastic surgeon and a psychiatrist, the court concluded that neither this evidence nor any other evidence introduced by the plaintiff established "that plaintiff actually suffered from BDD at the time of the surgeries, or that she was mentally incapable of understanding the alternatives and risks associated with the procedures," and thus that she lacked the ability to consent to them. (113) The court observed that the patient was not receiving psychiatric care at the time of the surgeries and, further, she had "indicated on a medical questionnaire that she did not suffer from a psychiatric illness." (114)
Importantly, however, because the court's holding turns on the lack of evidence that the patient actually suffered from BDD at the time of her surgeries or that her ability to consent was impaired by a mental disorder, in cases where these factual circumstances can be demonstrated and the plaintiff can show that the physician knew or should have known of such conditions, the outcome could be expected to be quite different. The opinion acknowledges that BDD is a "major psychiatric disorder[ ]" that can impair one's ability to consent, (115) suggesting that future courts might find that evidence of the presence of BDD in a patient can negate any consent given and render the surgeon liable for harms that result from carrying out the procedure without the requisite informed consent established. Thus, even under this ruling, cosmetic surgeons may have a special duty to make psychiatric referrals or to consider the implications of a psychiatric disorder on a decision to undertake cosmetic surgery when the patient presents with some evidence that such a disorder exists.
B. Physician's Fiduciary Duty
Although the relevant case law and scholarship is less developed compared to claims for a failure to obtain informed consent, the fiduciary nature of the doctor/patient relationship can give rise to an independent cause of action if a physician proceeds with cosmetic surgery that is medically contraindicated. (116) Physicians' fiduciary obligations to their patients may restrict a cosmetic surgeon's ability to operate on someone who appears to have BDD. In order for physicians to ensure that such fiduciary duties are appropriately discharged, they should alert patients if their complaints indicate a distorted view of their body; inform such patients that performing surgery when their flaws are imagined or grossly exaggerated will not fix the problem; and consult with or instruct patients to obtain services from a mental health professional to resolve their body image issues before any permanent or dangerous operations will be undertaken on their behalf.
Although the court in the seminal case of Canterbury v. Spence mentioned the defendant doctor's fiduciary duty to patients only briefly, even then--in 1972--it took the duty's existence as a given. (117) The concept of a fiduciary relationship is grounded in the laws governing trusts and agency, but it now extends to a variety of professional relationships such as lawyers and clients, guardians and wards, and corporate officers and shareholders. (118) The relationship between a physician and a patient is analogous to these other fiduciary relationships due to the patient's vulnerability, the physician's expertise and the patient's reliance and dependence on this expertise, the exercise and application of professional judgment in the physician's work, the patient's inability to effectively question or monitor the physician's performance, and the importance of maintaining a physician/patient relationship built on trust. (119) Various aspects of the fiduciary obligation of physicians are reaffirmed by a number of legislative enactments, in addition to the ethical mandates propounded by professional organizations, both of which impose similar responsibilities on physicians, including that any conflict between the patient's welfare and the doctor's economic interest must be resolved in favor of the patient. (120)
Accordingly, to the extent that plaintiffs can establish that the cosmetic surgeons from whom they have received services have put their own financial or other concerns ahead of their patients' wellbeing and have performed any unjustifiable procedures on patients suffering from BDD, a cause of action for breach of fiduciary duty may be available.
The physician's fiduciary duty "is predicated on the proposition that the physician has special knowledge and skill in diagnosing and treating diseases and injuries and that the patient has sought and obtained the services of the physician because of this expertise," requiring the physician "to exercise the utmost good faith in dealing with his or her patient." (121) Once the doctor-patient relationship is established, an implied promise arises that "the physician will refrain from acting in a way that is inconsistent with the good faith required of a fiduciary. The patient should.., be able to trust that the physician will act in the best interests of the patient thereby protecting the sanctity of the physician-patient relationship." (122) A failure to do so constitutes a breach of the physician's fiduciary duty to the patient.
For example, the fiduciary duty underlies the learned intermediary doctrine, which imposes on physicians--rather than on the manufacturer of a medical product--the responsibility to inform their patients of the risks and benefits of a particular drug and supervise its use. (123) Specifically, the learned intermediary doctrine recognizes that "it is the physician who best knows the patient" and is best situated to take steps to protect the wellbeing of the patient. (124) In this context, the fiduciary relationship is predicated on the proposition that "the patient seeks out and obtains the physician's services because the physician possesses special knowledge and skill," and as a result "both parties envision that the patient will rely on the judgment and expertise of the physician." (125) Similarly, cosmetic surgeons are in the best position to assess their patients' needs, to weigh the physical and psychological risks and benefits of surgery, and to guide their patients' decision about whether an elective aesthetic procedure is an appropriate choice.
Courts have specified particular obligations that stem from the doctor's fiduciary responsibility. They include duties to (1) fully inform the patient of his or her condition; (2) provide continuity of care; (3) obtain informed consent; and (4) make referrals to a specialist if needed. (126) Given these specific duties and the foregoing rationale for imposing the fiduciary relationship, a plastic surgeon who engages with a patient whom the doctor knows or ought to know suffers from BDD, potentially could face liability for a breach of his or her fiduciary duty if such doctor (1) fails to inform the patient of the suspected presence of a psychiatric condition that could interfere with the patient's satisfaction with the cosmetic surgery results or the patient's overall health and wellbeing; (2) either does not personally follow up with the patient postoperatively or fails to enlist a mental health professional to provide continuing treatment for BDD-related issues; (3) does not obtain the patient's informed consent, whether due to the patient's lack of decision-making capacity or the doctor's own failure to fully and forcefully disclose the risks that patients with even mild manifestations of BDD may face when undergoing an elective cosmetic operation; or (4) fails to consult with or to refer the patient to a psychiatric professional upon perceiving symptoms of BDD before performing a surgical procedure. In general, a cosmetic surgeon should be familiar with the literature on BDD and should know that patients suffering from the disorder usually are rarely fully satisfied with the results of cosmetic procedures and tend not to experience any alleviation of their BDD symptoms. Accordingly, prudent physicians will refrain from providing cosmetic surgery to these patients until they are confident that the patient's BDD has been adequately addressed.
C. Breach of Contract
Absent an explicit contract, promise, or guarantee warranting a particular result, courts are unlikely to hold a physician who exercised reasonable care and skill in performing a cosmetic procedure responsible for a patient's unhappiness with the outcome. (127) The courts have consistently held that a physician "is not an insurer or guarantor of results, in the absence of [an] express agreement," and that "in the absence of such a special and peculiar contract" the physician will not be held liable merely because the results were not what was hoped for and expected. (128) Cosmetic surgery patients typically approach their doctor out of desire rather than necessity, seeking a particular aesthetic result rather than the alleviation of pain or the cure of an ailment. (129) Courts are typically "unenthusiastic or skeptical about [applying] contract theory" in this context; instead, because "the uncertainties of medical science and the variations in the physical and psychological conditions of individual patients [mean that] doctors can seldom in good faith promise specific results," the enforcement of an alleged contract is limited to when there is clear proof of its existence. (130)
Despite the general rule that the commencement of a physician/patient relationship is not, by itself, deemed to be a guarantee of a cure or a specific result absent an express warranty to the contrary, (131) cosmetic surgeons, compared to physicians specializing in other areas, may be more vulnerable to lawsuits sounding in contract law brought by dissatisfied patients. With the advent of computerized imaging software that purports to show patients how they will look following the proposed cosmetic procedure, the increase in direct-to-consumer advertising "promising" rejuvenation and other dramatic aesthetic changes, and the fact that cosmetic surgery is more likely to resemble a traditional commercial transaction (with the patient paying a sizeable fee directly to the doctor, since the patient's healthcare plan is unlikely to cover such services), lawsuits for a breach of contract targeting cosmetic surgeons become increasingly likely.
Because the average patient with BDD will have exaggerated, unrealistic, or implacable expectations that leave the patient particularly likely to be dissatisfied with the outcome of the surgery despite having spent large sums of money on the treatment, individuals with BDD would seem especially likely to pursue this form of litigation against cosmetic surgeons. Patients with BDD may be more inclined to hear "[s]tatements of opinion by the physician with some optimistic coloring ... [and] transform such statements into firm promises," and "when they have been disappointed in the event" may "testify [accordingly] to sympathetic juries." (132) To the extent that it can be demonstrated that a cosmetic surgeon knowingly took advantage of the unrealistic expectations of a patient with BDD and provided services that the physician knew were unlikely to satisfy the patient's distorted perspective, such contract claims may be especially likely to succeed.
Indeed, if the surgeon does in fact make express warranties about the final results of the procedure, the patient may be able to sue under a breach of contract claim. In Frank v. Maliniak, (133) the plaintiff had sought a plastic surgeon's services to repair a previously botched rhinoplasty that had caused paraffin to filter from the tip of her nose into her cheeks, causing unsightly bumps. (134) The doctor explicitly promised the patient that he would perform corrective operations in such a manner that no incisions would be made on her face and she would have no external scarring. (135) During the fifth corrective operation, however, he breached this agreement and made two cuts on each side of the plaintiff's mouth. Although the court found no proof of any lack of skill or negligence on the part of the physician, it ruled that the plaintiff had a viable cause of action for breach of contract, as the facial cutting constituted "an infraction of the express agreement." (136) As a result, the patient was entitled to all damages that proximately flowed from this act. (137)
Although cosmetic surgery patients may have some success when pursuing a claim for breach of an express warranty (i.e., when a specific promise was made), they are far less likely to be successful when pursuing a claim for a breach of an implied warranty. In nonmedical contexts, an implied warranty may arise if surrounding circumstances (as opposed to an explicit verbal or written statement) render an individual justified in believing that a promise to perform an action in a specific way has been made and such individual has relied on that perceived promise. However, such claims pertaining to the expected outcomes of medical treatment are routinely rejected by the courts, applying a widely recognized rule that implied warranties do not arise when the service requires the exercise of professional medical judgment. (138)
Nevertheless, given the high percentage of individuals pursuing cosmetic surgery who present with BDD, telling a patient that she can surgically achieve the same look as a model or celebrity, or even simply using computerized digital imaging software to offer the patient a visual projection of her future appearance, is a risky proposition. Not even the best surgeon can make an individual's appearance identical to a predictive virtual image, and the distorted perceptions of a patient with BDD will further compound the discrepancy between the outcome and the patient's imagined ideal. A disappointed and perhaps embittered postoperative patient may seize on what is perceived to be the doctor's failure to make good on a guarantee of perfection and initiate litigation in response. Although cosmetic surgeons may be reluctant to give up the use of what they believe to be revenue-enhancing products such as computer-imaging software during in-office presurgical consultations, at a minimum they need to explain to their patients that these products provide merely a rough estimation of the surgery's intended results and that the actual outcome will be tied to the patient's unique physiological features, among other factors. Similarly, they should clarify that any references or comparisons by either party to a celebrity's facial features or body type should be considered illustrative at most. Cosmetic surgeons ought to recognize that the expectations created by these images and examples, particularly when compounded with ideas generated by various other marketing techniques, (139) are sufficiently likely to instill unrealistic and unobtainable beliefs about potential results in their patients that the value of such strategies may be nullified by the potential liability to which the doctors employing these methods become exposed. (140)
If it is determined that a cosmetic surgeon did make a contractual promise to a patient with BDD or some other mental disorder, it generally will be immaterial if the patient lacked legal decision-making capacity to enter into such a contract. If a mental disorder renders a patient incompetent to contract, the majority rule is that the contract itself "is not void but at most voidable at the insistence of the alleged incompetent." (141) Thus, a disappointed patient would remain free to pursue a breach of contract suit against a cosmetic surgeon under the circumstances. If a court believes that the patient reasonably could have interpreted either the doctor's statements during consultation or the doctor's advertising methods and materials as a promise to attain a certain result, the court may allow the patient to recover damages. (142)
The vulnerability of cosmetic surgeons to these contractual claims is exemplified by the case of Lovely v. Percy, (143) where the court ruled that a patient presented evidence creating a genuine issue of material fact as to whether she entered into an oral contract with a physician regarding her expected outcome from her cosmetic surgery. (144) Specifically, the plaintiff claimed that she told the doctor that she wanted her breast size increased to a 34C cup, and that the surgeon told her that he would be able to accomplish this goal. (145) In response, the surgeon averred in his motion for a summary judgment that he (1) only told the patient her breasts would "most likely" be between a B and C cup postoperatively but never gave her any assurance or guarantee that this would occur; (2) had the patient initial each page of a six-page informed consent document and sign a disclaimer stating that no guarantee had been given as to the results that might be obtained; and (3) had the patient sign an additional consent to the operation on the day of the surgery which further stated that no guarantees had been given as to the outcome of the surgery. (146)
The court, however, discounted the value of the consent forms, stating that it was doubtful that they constituted the entire contract between the parties, particularly since neither contained an integration clause indicating the parties' intent that the forms were to comprise their entire agreement. (147) The court ruled that "a doctor and patient can enter into a satisfaction contract that is separate and distinct from the primary contract between a doctor and patient for medical care." (148)
While any patient, regardless of his or her mental health, could present similar allegations asserting the breach of an oral agreement by his or her physician, the potential for such a suit should be of special concern to cosmetic surgeons treating patients with BDD. Such patients may be more likely to interpret a physician's statements as a guarantee that their perceived flaws will be "fixed," to find fault with their outcomes, and to pursue litigation against the doctor who performed the operation with which they remained dissatisfied. (149)
IV. Protocols to Diminish the Likelihood of Litigation
As discussed herein, cosmetic surgeons, and particularly those who provide their services to patients with BDD or similar mental disorders, may be subject to lawsuits based on a number of legal theories, ranging from a failure to adequately disclose the likely risks and benefits of the procedure and a failure to obtain informed consent, to proceeding with surgery when it is medically contradicted, to disappointing the contractual expectations of the patient. Accordingly, cosmetic surgeons would be well-advised to implement protocols to reduce the risk of former patients initiating such litigation or having an unfavorable judgment entered against them. Various examples of such measures follow in this section.
A. Psychological Screening During Preoperative Consultation
Due to the higher rate at which patients with BDD (and, presumably, comparable anxiety, eating, and compulsive behavior disorders) seek cosmetic surgery, the emerging professional norm is that all candidates for elective plastic surgery should undergo at least a rudimentary psychological screening. (150) This should involve an interview with the cosmetic surgeon or a self-report questionnaire (or both), whereby the doctor explores the patient's motivations and expectations for the surgery, her psychiatric status and history, and her body image, screening for, inter alia, the presence of any BDD symptoms. (151)
If the doctor identifies evidence of BDD, the patient should be referred to a mental health professional who can more thoroughly evaluate whether such patient is psychologically fit for cosmetic surgery and who can monitor and treat any psychiatric disorder that might distort such patient's expectations about surgical results before authorizing the commencement of the procedure. (152
Cosmetic surgeons have a responsibility to familiarize themselves and their patients with the psychological implications of undergoing cosmetic surgery, and to address any related questions raised by the patient during the preoperative consultation. (153) Due to the growing belief in the profession that plastic surgeons "can usually identify troubled patients during a consultation," (154) this responsibility is increasingly likely to be deemed a legal responsibility as well as an ethical one.
In general, patients should be advised to seek counseling if it becomes apparent that they have unrealistic expectations regarding the outcome of the surgery, that they are unlikely to be pleased by the outcome, or that they "are obsessed with a very minor defect." (155) Surgical candidates with manageable manifestations of certain psychiatric disorders may nonetheless receive surgery, "as long as they are realistic enough to understand that surgical results may not precisely match their goals." (156) It is important to recognize that the presence of a psychiatric disorder does not, by itself, inherently indicate that the patient seeking cosmetic surgery will have distorted expectations regarding the likely outcome of the procedure or will be disappointed in the results. (157) Thus, the basic initial psychological screening and even a resulting referral to a mental health professional should not be employed to bar all such patients from cosmetic surgery. This protocol is designed only to identify those surgical candidates with significantly distorted expectations and, if necessary, to initiate counseling or other treatment to redress these distorted expectations before allowing surgery to proceed. In such cases, both the cosmetic surgeon and the mental health professionals who have participated in the psychological screening and treatment of a patient with BDD should be in agreement that the patient has sufficiently progressed to where, if the surgery is still desired, it will not cause undue harm or distress. In borderline cases, such as where the surgical candidate does not seem to satisfy the diagnostic criteria for BDD or any other psychiatric disorder but where the surgeon remains concerned about remarks or perceptions that the candidate expressed during the pre-screening interview or questionnaire, the surgeon may want to obtain the opinion of a mental health professional who has assessed the patient to determine that the patient understands the likely outcome of the procedure and does not present with any mental disorder that renders the procedure contraindicated. (158)
B. Indicators of BDD
Certain behaviors should signal to cosmetic surgeons that extra precautions may be necessary to ensure that the prospective patient is psychologically prepared to undergo cosmetic surgery. For convenience, these indicators are grouped into the categories that follow.
1. Behavioral Manifestations During the Consultation
During the course of a preoperative consultation, physicians may notice their patients obsessively checking their reflection in mirrors or other reflective surfaces, often unconsciously. (159) Patients also may go to excessive lengths to mask a perceived deformity with their hairstyle, make-up, or clothing, or by other means. (160) Finally, some patients may continuously pick at their skin or adjust their body position to "improve" or hide their area of concern. (161)
2. Statements Made to the Surgeon
A cosmetic surgeon should further investigate the possibility of BDD in individuals who criticize and request changes to multiple aspects of their appearance during a single appointment; whose perspective on the desirability and results of plastic surgery has been skewed by celebrity culture and reality television shows; or who have unrealistic expectations about how the physical change will improve other facets of their lives. (162)
3. Admitted Behavioral Impact
Cosmetic surgeons should ask their patients about specific ways in which their "flawed" body part affects their daily life. They should also probe whether their patients experience uncontrollable, intrusive thoughts about the supposed flaw, and whether a delusional intensity is associated with these thoughts. (163) Some patients may volunteer this information and even be eager to discuss it if asked. Patients with distorted views may describe their distress about their body image or their preoccupation with their targeted body part as interfering with their vocational or academic performance, as well as with their social interactions. (164) A surgical candidate who attributes a sense of emotional or physical isolation from others to a relatively imperceptible physical flaw will frequently require referral to a mental health professional before any cosmetic operation is performed.
4. Surgical History
Many patients with BDD have an extensive history of cosmetic surgery and other less invasive cosmetic procedures (such as collagen injections and tooth whitening). (165) Because cosmetic surgery "addicts" often bounce between different doctors, it may be difficult for the examining plastic surgeon to know whether they have the complete medical history of the patient. These patients also may try to conceal or explain away past procedures to avoid arousing suspicion in the doctor. (166) The physician should emphasize the importance of candor when taking the patient's medical history, and should use the opportunity to inquire into the patient's motivations for and satisfaction with any past cosmetic work.
5. Demographic Characteristics
Individuals with BDD tend to share certain demographic and dispositional traits. For instance, individuals with BDD on average suffer from higher levels of depression, anxiety, and hostility than both the general population and the subset of the population that receives plastic surgery. (167) Additionally, they tend to be significantly younger than the average patient at the time of their cosmetic procedure, suggesting that "younger age might be a clue to look for [regarding] a BDD diagnosis in candidates for cosmetic surgery with minimal defect[s] in appearance." (168) Of course, the mere presence of these traits does not necessitate referral for a psychological evaluation; if they appear in conjunction with other indicators of BDD or a related psychiatric disorder, however, cosmetic surgeons should, at minimum, carefully record this information along with a written explanation or justification of how they arrived at their ultimate decision to provide or refuse the requested procedure.
C. Efforts to Obtain Subjective Informed Consent
In the absence of any evidence of coercion or deception, a signed informed consent form generally raises a strong presumption that the physician involved did in fact fulfill his or her duty of disclosure. (169) As a result, these forms are ubiquitous throughout the medical profession. Ideally, these documents would serve an informational or signaling function for the patient's benefit, rather than simply acting as a precaution against the incurrence of physician liability. Doctors have noted that patients often remember little of what is discussed during consultations, particularly when such patients are focused on their subjective desire for the procedure, so a written document that delineates the risks and drawbacks of an elective procedure and requires patients to take the affirmative step of signing their name in acknowledgement that the document has been read may help them recognize the seriousness of the proposed procedure. (170) However, as physicians have long recognized, many patients sign these forms "either without reading them or without absorbing their content." (171)
One way a cosmetic surgeon can further ensure adequate patient understanding is to insist on a second consultation during which the doctor can check the patient's comprehension of the content of the forms. (172) Not only does such a policy demonstrate that the surgeon is committed to truly obtaining the patient's informed consent beyond simply discharging her legal duty as expeditiously as possible, it also gives the physician an opportunity to observe the patient a second time for any symptoms of BDD.
In addition, during the consultation process and as a part of obtaining informed consent, cosmetic surgeons should discuss the following topics:
1. Whether the Patient Has Considered Non-surgical Options
These alternatives may range from the basics of diet, exercise, and the use of make-up, to more complicated beauty procedures such as trying Botox before undergoing a face lift. While a patient need not always prove to the doctor that surgery is her last resort, the doctor should feel confident that a patient has given serious consideration to less invasive alternative ways of managing the perceived flaw before arriving at the decision for surgery. By exploring a surgical candidate's past attempts to change or improve this particular aspect of her appearance, the doctor may also be able to gauge whether the patient's efforts to correct the perceived flaw have become obsessive, indicating the possible presence of BDD.
2. Whether Future Procedures May Be Needed
Various cosmetic procedures will require one or more follow-up visits to the doctor to either improve, maintain, or fix the initial results. For instance, individuals generally need to receive Botox injections every three to six months to maintain the effects, (173) and collagen injections to the lips last only two to four months. (174) Similarly, although patients often assume a breast augmentation will last forever, breast implants often harden, rupture, or leak, with as many as seventy percent needing to be replaced after ten years. (175) Responsible plastic surgeons will inform prospective patients of the statistics regarding implant replacement in general and, if the numbers are available, for their own practice. Even seemingly obvious statements--such as the fact that the results of liposuction will not be maintained unless the patient adheres to an appropriate diet and exercise regiment--should be disclosed. (176)
In addition, when providing cosmetic work to an individual with BDD, there is an increased risk that the patient will continue to view the treated body part as flawed after the procedure has been completed. If doctors do not ensure that patients are aware of all of the potential ways in which even a properly executed surgery can fail to meet expectations and may even detract from rather than improve physical appearance, and fail to detail the steps that patients must take to promote proper healing and maintenance of the results, such patients may blame their cosmetic surgeons for any dissatisfaction with the outcome and assert that they were not sufficiently warned about the possibility of disappointment beforehand.
3. The Surgeon's Policy on Corrective Surgery
Even if the operation is a technical success, some cosmetic surgeons will offer to provide additional work for a reduced fee if the patient is dissatisfied with the aesthetic results. Raising the possibility of the need for cosmetic surgery before the initial procedure can remind patients that bodily perfection---objective or subjective's not guaranteed. Moreover, the patient's reaction to a reminder that surgery may not achieve her imagined ideal could alert the doctor to the presence of an associated mental disorder. Finally, physicians should be cautious--but not dismissive--of patients who do seek "corrective" operations when their complaints seem objectively unjustified. If the supposed flaw reflects a distorted self-perception stemming from BDD, the patient will never be satisfied with the outcome, no matter how many surgical attempts the doctor makes to "fix" the patient's concern.
D. Dissuasion and Refusal
There is evidence that it is fairly common for qualified plastic surgeons to refuse to operate on a patient when they believe that the desired treatment is "unnecessary." (177 Similarly, it has been found that eighty-four percent of cosmetic surgeons have at some point refused to operate on a patient whom they suspected was specifically suffering from BDD. (178) These findings indicate not only a consensus among cosmetic surgeons and an ethical norm within the profession, but in turn can provide the basis for a legal obligation, to decline to operate upon patients who display unaddressed and unresolved symptoms of BDD.
Cosmetic surgeons may object to the imposition of a stringent legal standard of care derived from such abstract, discrete professional judgments, arguing that that they see many patients who do not have any mental disorder, but who simply wish "to correct slight imperfections or to enhance 'normal' features." (179) Such surgical candidates, whose appearances would seem acceptable and free from any major deformities to an objective lay observer, drive much of the industry's business. Cosmetic surgeons may be reluctant to alienate these patients by "accusing" them of having BDD because they display one of the symptoms of the disorder. Moreover, it may seem inefficient to expend time and money "proving" that every patient is sufficiently psychologically stable for elective surgery. Nevertheless, because of the significant risks and minimal benefits that surgery may pose for at least a subset of this population of patients, as well as the potential litigation risks such patients may pose, (180) it generally will be in the best interest of the cosmetic surgeon to institute the protocols described above in order to identify prior to surgery patients with BDD or other mental disorders. If the doctor then determines that cosmetic surgery is contraindicated, the physician can attempt to dissuade the patient from receiving the procedure or can refuse to provide the patient with services until the physician is confident that the impact of the mental disorder has been alleviated.
This Article's discussion of the various causes of action that a cosmetic surgeon may face might seem intimidating to medical practitioners, perhaps inducing some to practice so-called "defensive medicine" to reduce the odds of being subjected to a lawsuit. However, while it is important that doctors remain aware of and act in accordance with their legal obligations, the factual circumstances from which such lawsuits are likely to arise should not be surprising. In order for any such claim to be viable, there must be evidence that the cosmetic surgeon abused or neglected the basic principles of medical care owed to their patients. Cosmetic surgeons who make an effort to screen their patients for signs of BDD or other mental disorders, who are willing to turn away surgical candidates or to refer them to a mental health professional when appropriate, even if doing so means "wasted" time and loss of income, and who are candid and forthcoming with their patients about the possible consequences of these procedures, will rarely be subject to a lawsuit and even less often found to have engaged in wrongdoing.
Many cognitive and behavioral indicators of BDD should be readily apparent to an attentive and compassionate physician. The protocols outlined in this Article seek to balance the safety and wellbeing of prospective cosmetic surgery patients with the right of such patients--including most patients with a mental disorder--to receive a requested medical procedure and the right of physicians to practice their craft and to provide their services without undue interference. Cosmetic surgery is a burgeoning industry for which professional norms are emerging and gradually evolving. In light of an increasing body of evidence suggesting that a not inconsequential portion of patients seeking elective cosmetic procedures may have BDD or suffer from related symptoms, this Article has endeavored to identify the risks to both physicians and patients that are associated with the provisions of these services to patients with BDD and to outline certain protocols that can help to redress these risks.
(1) Confucius (551-479 BC).
(2) AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS: DSM-IV-TR 485, 507 (4th ed., text revision, 2000) [hereinafter DSM-IV-TR]. For a more thorough discussion of BDD, see Canice E. Crerand et al., Body Dysmorphic Disorder and Cosmetic Surgery, 118 PLAST. RECONSTR. SURG. 167 (2006).
(3) DSM-IV-TR, supra note 2, at 507.
(5) Rhoda Fukushima, Face Value: Some People Get Cosmetic Surgery for Reasons That Are Not Just Skin Deep, ST. PAUL PIONEER PRESS, July 30, 2007, at D1.
(6) Crerand et al., supra note 2, at 171.
(9) Fukushima, supra note 5.
(11) See David Phelps, Nipping, Tucking Off Years; Aging Baby Boomers Are Leading a Surge in Cosmetic Surgery Procedures, STAR TRIB., Sept. 9, 2007, at 01D (quoting one center's nurse manager, "Every time Oprah does a special on a procedure, the phones start ringing").
(12) Id. (citing one surgeon who said he would be reimbursed $350 from Medicare for a medically indicated surgery to fix droopy eyelids, but the same procedure when done for cosmetic purposes would net him $2,000).
(13) Fukushima, supra note 5 (as reported by the American Society of Plastic Surgeons).
(14) THE AMERICAN SOCIETY FOR AESTHETIC PLASTIC SURGERY, COSMETIC SURGERY NATIONAL DATA BANK: STATISTICS 2008, available at www.surgery.org/sites/default/files/2008stats.pdf. This number is down from nearly 12 million procedures in 2007, a decline likely attributable to the 2008 economic recession.
(15) Fukushima, supra note 5.
(16) Phelps, supra note 11.
(17) Fukushima, supra note 5.
(18) The American Society of Plastic Surgeons identifies two categories of patients for whom the permanent surgical alteration of one's physical appearance is an appropriate choice: patients who have a strong self-image in general but who are bothered by a particular physical characteristic, and patients who have an actual "physical defect or cosmetic flaw that has diminished their self esteem over time." See THE AMERICAN SOCIETY OF PLASTIC SURGEONS (ASPS), PSYCHOLOGICAL ASPECTS: YOUR SELF-IMAGE AND PLASTIC SURGERY (2008), available at http://www.plasticsurgery.org/Patients_and_Consumers/Planning_Your_Surgery/ Psychological_Aspects_Your_Self-Image_and_ Plastic_Surgery.html.
(19) Rachel Nowak, Looks Can Kill, BUFFALO NEWS New York), Nov. 21, 2006, at C5.
(23) American Political Network ("APN"), Cosmetic Breast Implants Linked to Increased Rates of Suicide, 10 AM. HEALTH LINE 17 (Aug. 9, 2007).
(26) Nowak, supra note 19.
(27) APN, supra note 23 (quoting Loren Lipworth, a study author from Vanderbilt University).
(28) See Jean-Paul Meningaud et al., Ethics and Aims of Cosmetic Surgery: A Contribution from an Analysis of Claims After Minor Damage, 19 MED. & L. 237,240 (2000).
(29) Id. at 245.
(30) Crerand et al., supra note 2, at 174.
(32) Vincenzo Vindigni et al., The Importance of Recognizing Body Dysmorphic Disorder in Cosmetic Surgery Patients: Do Our Patients Need a Preoperative Psychiatric Evaluation?, 25 EUR J. PLAST. SURG. 305, 307 (2002).
(34) Jean Tignol et al., Body Dysmorphic Disorder and Cosmetic Surgery: Evolution of 24 Subjects with a Minimal Defect in Appearance 5 years After Their Request for Cosmetic Surgery, 22 J. EUR. PSYCHIATRY 520, 520 (2007).
(36) Id. at 521 (citing a 2002 study of members of the American Society for Aesthetic Plastic Surgery).
(38) Vindigni et al., supra note 32, at 306.
(40) Id. The 9% (5 out of 56) of cosmetic surgery candidates with moderate to severe BDD found by this study is consistent with the 6% to 15% rate of prevalence frequently cited in medical literature. See supra note 26 and accompanying text.
(41) Vindigni et al., supra note 32, at 306
(42) Id. at 306-07.
(43) Id. at 307.
(46) Tignol et al., supra note 34, at 523.
(50) David B. Sarwer et al., Body Image Dissatisfaction and Body Dysmorphic Disorder in 100 Cosmetic Surgery Patients, 101 PLAST. RECONSTR. SURG. 1644 (1998).
(55) Although beyond the scope of this Article, a physician who inappropriately provides cosmetic surgery to a patient with BDD could also face disciplinary sanctions from her or his state medical licensure board. These sanctions could include requiring a physician to obtain additional education or training on identifying and handling patients with BDD; monitoring the surgeon's practice; fining or reprimanding the surgeon; or revoking, suspending, or restricting the surgeon's medical license. See Darren Grant & Kelly C. Alfred, Sanctions and Recidivism: An Evaluation of Physician Discipline by State Medical Boards, 32 J. HEALTH POL. POL'Y & L. 867, 870 (2007).
(56) See, e.g., Annemarie Bridy, Confounding Extremities: Surgery at the Medico-Ethical Limits of Self-Modification, 32 J.L. MED. & ETHICS 148, 154 (2004) ("[I]n creating professional norms, the medical profession to a great extent autonomously defines the legal standards to which its members will be held.").
(57) See, e.g., 61 AM. JUR. 2D Physicians, Surgeons, Etc. [section] 321 (2007) ("In the great majority of malpractice cases, a plaintiff must establish by expert testimony both the standard of care and the defendant's failure to conform to that standard.").
(58) Id. at [section] 172 (explaining that in some jurisdictions the physician will be required to disclose what "a reasonably prudent physician would be expected to disclose under like circumstances," while in other jurisdictions the standard is based on what a reasonable patient would want to know).
(59) Bridy, supra note 56, at 154 ("Canterbury teaches that where autonomously defined professional guidelines or customs fail to adequately protect patients' health or their rights, those guidelines or customs will be subject to judicial abrogation or redefinition.").
(60) Depending on the jurisdiction and the factual circumstances of the case, an aggrieved patient with BDD may have several causes of action that she could bring against her plastic surgeon. For instance, if a doctor ignored obvious symptoms of the disorder during a presurgical consultation and proceeded with the surgery anyway, this could constitute a general breach of due care or a failure to obtain informed consent; the resulting cause of action could sound in battery, negligent nondisclosure, or medical malpractice, depending on the state's common law and the plaintiff's theory of the case.
(61) A failure to provide any disclosure at all to a patient before conducting a medical procedure or obtaining permission to treat from a patient who lacks the legal capacity to consent to this treatment in some jurisdictions may constitute a battery (i.e., an unconsented touching) as well. See, e.g., Cardwell v. Bechtol, 724 S.W. (2d 739 (Tenn. 1987) (noting that either the patient's legal incapacity to consent to surgery generally or the doctor's failure to provide sufficient information under the informed consent doctrine could result in a battery cause of action); but see Kinikin v. Heupel, 305 N.W. (2d 589, 593 (Minn. 1981) (ruling that battery is more appropriate in the context of a touching of a "substantially and obviously different kind" from that to which the patient consented, such as an operation on the wrong body part, whereas a negligent nondisclosure claim centers on a physician's failure to disclose information to which a reasonable person in the patient's position would attach significance in formulating her treatment decisions; the latter was deemed appropriate in the case before the court, which involved a patient displeased with the extent of the tissue removal and resultant scarring and deformity in appearance following the prophylactic removal of fibrocystic breast tissue); Lacey v. Laird, 139 N.E. (2d 25, 25 (Ohio 1956) (rejecting an assault and battery claim, notwithstanding that the patient was a minor and her parents had not consented to the procedure, holding that the minor's express consent to assume the risks of the operation relieved the doctor from liability). This cause of action often parallels or may be encompassed within a cause of action for failure to obtain informed consent. See, e.g., Tonelli v. Khanna, 569 A.2d 282, 285 (N.J. Super. Ct. App. Div. 1990) ("The battery theory applies where the surgery was completely unauthorized as, for instance, where the plaintiff did not consent to the particular medical treatment provided.... Where the surgery was authorized but the consent was uninformed, negligence applies rather than battery" (citing treatises and cases)). Even though a battery claim focusing on cosmetic surgery undertaken with a patient suffering from BDD may raise somewhat unique legal issues, this Article does not attempt to resolve them.
(62) Schloendorff v. Soc'y of N.Y. Hosp., 211 N.Y. 125, 129-30 (N.Y. 1914). Although this principle originally sounded in battery, in recent years it has come to be encompassed within the tort of negligence.
(63) Id. at 916-17.
(64) Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899, 916 (1994).
(66) Schuck, supra note 64, at 903 ("[I]dealists tend to define informed consent law's pivotal concepts--materiality of risk, disclosure, alternatives, and causation--broadly and subjectively from the perspective of the individual patient rather than that of the professional, while defining the law's exceptions to the duty narrowly.").
(67) Id. at 955 ("[T]he risk-benefit ratio is more controversial, the choice is highly personal and private and does not directly affect others, and the dialogic opportunities are relatively great.").
(68) "A claim against a physician for negligence based on lack of informed consent is separate from a claim based on negligence in medical treatment. ... A physician can be liable for failure to obtain informed consent before treatment without being negligent in the actual treatment of the patient." Sherwood v. Danbury Hosp., 896 A.2d 777, 788 (Conn. 2006) (citing 61 AM. JUR. 2D 267, Physicians, Surgeons, Etc., [section] 152 (2002)).
(69) Schuck, supra note 64, at 918-19; see also Canterbury v. Spence, 464 F.2d 772, 790-91 (D.C. Cir. 1972).
(70) Schuck, supra note 64, at 919.
(71) Canterbury, 464 F.2d at 780.
(73) Id. at 782, n.27.
(74) Id. at 787.
(78) Id. at 924-26.
(79) See generally Isaiah Berlin, Two Concepts of Liberty, in LIBERTY: INCORPORATING FOUR ESSAYS ON LIBERTY 166-218 (Henry Hardy ed. 2002).
(80) See, e.g., Tibor R. Machan, The Perils of Positive Rights, 51 THE FREEMAN: IDEAS ON LIBERTY 49 (2001) (arguing that America's political system is founded on a theory of negative natural rights relating to protection from uninvited intrusions by others, and that positive rights, whereby one person can require the provision of the goods and services of another, are suspect because they tend to "trump freedom").
(81) See, e.g., Roev. Wade, 410 U.S. 113 (1973) (holding women's right to abortion is not unqualified due to countervailing state interests "in safeguarding health, in maintaining medical standards, and in protecting potential life"); Paris Adult Theatre Iv. Slaton, 413 U.S. 49 (1973) (ruling societal interest in upholding a certain quality of life within the community can outweigh the right to privacy in some circumstances); Rutherford v. United States, 616 F.2d 455 (10th Cir. 1980) (concluding governmental interest in protecting public health outweighs individual's right to select whatever medication she desires to treat a disease).
(82) Schuck, supra note 64, at 927.
(83) Complementary plastic surgery procedures are not categorically unethical. For instance, a doctor may suggest chin implants to a rhinoplasty patient in order to improve the person's entire side profile. See generally Travis T. Tollefson & Jonathan M. Sykes, Computer Imaging Software for Profile Photograph Analysis, 9 ARCH. FACIAL PLAST. SURG. 113 (2007) (discussing the use of computer imaging software to improve facial symmetry in patients who received both rhinoplasty and chin surgery). The two procedures can be rationally related to a desired aesthetic objective. Advising a patient to alter an unrelated body part about which the patient has not complained (e.g., bringing up breast augmentation during a facelift consultation) is more questionable, however.
(84) Schuck, supra note 64, at 927.
(85) Schuck, supra note 64, at 928.
(86) Although it can be argued that a patient with BDD who is seeking cosmetic surgery may be particularly knowledgeable about her options as her obsession with her perceived body deformity results in her devoting considerable time and attention to remedying it, the heightened informed consent requirements proposed in this Article are designed to ensure that the choices made by the patient are both rational and truly informed and not a direct result of the body image disorder.
(87) The most easily accessible means of conducting such research is, of course, the internet, where professional organizations, individual doctors, and former patients, among others, host websites advertising their services or describing their personal experiences with plastic surgery. It should be noted that an apparent "factual" understanding, regardless of the method by which it is gained, may sometimes be flawed or misunderstood. See generally Thomas L. Hafemeister & Richard M. Gulbrandsen, Jr., The Fiduciary Obligation of Physicians to "Just Say No" if an "Informed" Patient Demands Services That Are Not Medically Indicated, 39 SETON HALL L. REV. 335 (2009).
(88) See infra Part III.A.1.b.
(89) If a bench trial is conducted, a judge may be similarly guided by prior case law or the judge's own intuitive skepticism.
(90) Schuck, supra note 64, at 953.
(92) See Susan Ferriss, Among California's New Laws: A Call for Plastic-surgery Precaution, SACRAMENTO BEE, Dec. 26, 2009, at 4A; Lisa Girion, Death, Drug Reactions Spur Concern About Botox Safety, L.A. TIMES, Feb. 9, 2008, http://www.latimes.com/business/la-fibotox9feb09,0,741539.story?page=1. On the other hand, reality television shows such as "Extreme Makeover," which appeared on ABC from 2002-2007, recorded participants treated by a team of plastic surgeons, dermatologists, cosmetic dentists, hair and makeup artists, dieticians, stylists, and personal trainers to completely transform their subjects' appearance, with arrangements made for a spectacular unveiling, often incorporating footage of the participants achieving a lifelong dream (such as being swooned over at a high school reunion or accompanying a famous singer on the violin) in a way that conveyed that extreme plastic surgery is completely safe, glamorous, and a key to improving other areas of one's life. See Wikipedia, Extreme Makeover, http://en.wikipedia.org/wiki/Extreme_Makeover (last visited Feb. 5, 2010).
(93) It should be noted that although cigarette addiction is classified as a mental disorder within the DSM-IV-TR (labeled a "substance-related disorder" therein, see DSM-IV-TR, supra note 2, at 564-69), a juror is likely to view either the cigarette usage in general or the commencement of the smoking that led to cigarette addiction to constitute a voluntary act. In contrast, most jurors will perceive the inception or continuation of the great majority of mental disorders to be wholly involuntary.
(94) 272 A.D.2d 38 (N.Y. App. Div. 2000) (holding that a "triable issue" was raised by the plaintiff's assertion that the defendant doctor "never discussed any options other than a mini or full abdominoplasty" and by the plaintiff's expert's opinion that the doctor "should have suggested a suction-assisted lipectomy as a less invasive alternative"), rev'd, 752 N.E.2d 250 (N.Y. 2001).
(95) Id. at 39.
(100) Id. at 40-41.
(101) Id. at 41-42.
(103) Id. at 42.
(105) Id. at 43.
(106) Id. at 41.
(107) Id. at 43.
(108) Id. at 41.
(110) Id. at 41-42.
(111) Lynn G. v. Hugo, 752 N.E.2d 250,251 (N.Y. 2001).
(116) See generally Hafemeister & Gulbrandsen, Jr., supra note 87, at 335.
(117) Canterbury, 464 F.2d at 782 (citing Emmett v. E. Dispensary & Cas. Hosp., 396 F.2d 931, 935 (D.C. Cir. 1967)). As will be discussed, under the common law of some states, the failure of physicians to meet their fiduciary obligations to their patients can provide the basis for an independent cause of action for breach of fiduciary duty. In other jurisdictions these fiduciary responsibilities are incorporated into other claims. See, e.g., Spoor v. Serota, 852 P.2d 1292, 1294 (Colo. App. 1992) ("[A] fiduciary duty.., includes, among other things, a duty to exercise reasonable care and skill on behalf of the client. That same duty is imposed upon physicians under negligence theories.... [Thus,] assertion of a claim for breach of fiduciary duty against [the doctor] would have been duplicative...."); D.A.B.v. Brown, 570 N.W.2d 168, 171-73 (Minn. App. 1997) ("Although the putative class attempts to frame the issue before us as one involving a breach of fiduciary duty, the gravamen of the complaint sounds in medical malpractice.").
(118) Marc A. Rodwin, Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System, 21 AM. J.L. & MED. 241, 243 (1995); see also Thomas L. Hafemeister & Sarah Payne Bryan, Beware Those Bearing Gifts: Physicians' Fiduciary Duty to Avoid Pharmaceutical Marketing, 57 U. KAN. L. REV. 491 (2009); Hafemeister & Gulbrandsen, supra note 87, at 335; Thomas L. Hafemeister & Selina Spinos, Lean on Me: A Physician's Fiduciary Duty to Disclose an Emergent Medical Risk to the Patient, 86 WASH. U. L. REV. 1167 (2009).
(119) Rodwin, supra note 118, at 243-46; see a/so Adams v. Ison, 249 S.W.2d 791 (Ky. 1952) ("[T]he patient must necessarily place great reliance, faith and confidence in the professional word, advice and acts of his doctor. It is the physicians' duty to act with the utmost good faith and to speak fairly and truthfully....").
(120) Rodwin, supra note 118, at 246 (citing, inter alia, the World Medical Association's Declaration of Geneva and the American Medical Association's Principles of Medical Ethics); see also CODE OF ETHICS (Am. Acad. of Facial Plast. & Reconstr. Surg. 2000), at pmbl. (facial plastic and reconstructive surgeons are obligated to make the welfare of their patients their primary concern); Id. at [section] 14 (such surgeons are expected to seek consultation from a colleague when facing "doubtful or difficult cases, or whenever it appears that the quality of medical service may be enhanced thereby"); Id. at [section] 19 (for such surgeons personal "reward or financial gain is a subordinate consideration"); Id. at [section] 21 (surgeons are authorized to perform only those operations that are "calculated to improve or benefit the patient"); Id. at pmbl. (limiting advertising to avoid misleading potential patients); but see id. at 242 ("the law holds doctors accountable as fiduciaries only in restricted situations.").
(121) Carson v. Fine, 123 Wash. 2d 206, 218 (1994) (both the majority opinion and the dissent labeled and discussed the doctor/patient relationship as fiduciary in nature).
(122) Id. at 231 (quoting Petrillo v. Syntex Labs., Inc., 148 Ill. App. 3d 581,594 (1986)); see also Sherwood v. Danbury Hospital, 896 A.2d 777, 797 (Conn. 2006) ("breach of a fiduciary duty implicates a duty of loyalty and honesty").
(123) Tracy v. Merrell Dow Pharm., 569 N.E.2d 875, 878 (Ohio 1991).
(125) Id. at 879.
(126) Carson, 123 Wash. 2d at 218; see also Welch v. Edds, No. 2004-CA-002255-MR, 2005 WL 3244339, *2 (Ky. App. 2005) (identifying "the patient's basic right to determine what is done to her body and the physician's fiduciary duty to make that right meaningful by supplying the patient with enough information to enable her to make informed decisions"); Tvedt v. Haugen, 294 N.W. 183, 187 (N.D. 1940) (ruling that fiduciary duty mandates that physician advise the patient if "the treatment adopted will probably be of no benefit."); Hafemeister & Bryan, supra note 118, at 491; Hafemeister & Gulbrandsen, supra note 87, at 335; Hafemeister & Spinos, supra note 118, at 1167.
(127) See, e.g., Bush v. St. Paul Fire & Marine Ins. Co., 264 So. 2d 717, 721 (La. App. 1972) (finding no liability for necrosis on left cheek following a lower face lift in the absence of demonstrable medical negligence or a preoperative warranty of results); Kutzgar v. Yarborough, 381 So. 2d 1260, 1261 (La. App. 1980) (plaintiff's theory that a leaflet describing the process and potential results of hair plug transplants constituted a doctor-patient contract was "not unreasonable," but physician liability would not be imposed for patient's dissatisfaction because the writings did not purport to be their entire contract and because the leaflet's language contained no promises or misrepresentations).
(128) Folse v. Anderson, 202 So. 2d 404, 410 (La. App. 1967) (citing 70 C.J.S. Physicians and Surgeons [section] 57, and 41 AM. JUR., Physicians and Surgeons [section] 104); see also Chatellier v. Ochsner Foundation Hosp., 348 So. 2d 110 (La. App. 1997) (holding that since the doctor had not entered into a specific contract for the desired result, nor had he made any guarantees or promises about the final appearance of the patient's nose, he would not be forced to act as an insurer of the results of the treatment afforded to the patient).
(129) It should be noted and emphasized, however, that some patients will contact a cosmetic surgeon because of an unquestionable genuine physiological reason for such surgery, such as injuries from a fire or an automobile accident. Although redressing the injuries that follow such a catastrophic incident may not be based on an absolute medical need insofar as the patient can function and carry out daily tasks without cosmetic surgery, the disfigurement can severely limit the patient's career and social opportunities and can be a source of continuing embarrassment and distress to the patient and her loved ones.
(130) Sullivan v. O'Connor, 296 N.E.2d 183, 185-86 (1973).
(131) Further, courts could view statements by a physician that appear to promise improved outcomes if a particular course of treatment is pursued to be part of the physician's attempts to induce optimism in the patient and encourage patient commitment to follow-up care, both of which are considered valuable in promoting successful treatment outcomes; as a result, the courts may be more inclined to read such warranties narrowly or to deem them unenforceable.
(132) Sullivan, 296 N.E.2d at 186.
(133) 232 A.D. 278 (N.Y.A.D. 1931).
(134) Id. at 278.
(135) Id. at 279.
(136) Id. at 280.
(138) See, e.g., Rhodes v. Sorokolit, 846 S.W.2d 618, 620 (Tex. App. 1993). A medical malpractice claim alleging a failure to exercise adequate medical judgment might be available to the plaintiff instead. Id. However, willful misrepresentations and express warranties "do not fall within the ambit of the plain meaning of negligence," although one jurisdiction allowed a patient harmed as a result of such assertions to recover under the state's Deceptive Trade Practices Act. Id. at 620-21 (permitting patient who was unhappy with the results of her breast augmentation to pursue claims against the doctor who had encouraged the patient to select a nude model from a Playboy magazine, and expressly promised her that he could make her breasts look the same way and affirmatively stated that there would be no problems with respect to scarring and other possible complications).
(139) Some practitioners have expressed considerable concern about the use of consumer advertisements for cosmetic procedures, contending that, as a result of this advertising, "cosmetic surgery is moving progressively further away from the field of medicine to become a purely commercial activity" where "non-medical criteria are influencing operative decisions." Meningaud et al., supra note 28, at 248. See also CODE OF ETHICS (Am. Acad. of Facial Plast. and Reconstr. Surg. 2000), at pmbl. (limiting advertising by facial plastic and reconstructive surgeons to avoid misleading potential patients).
(140) See Hafemeister & Bryan, supra note 118, at 491.
(141) RICHARD A. LORD, 5 WILLISTON ON CONTRACTS [section] 10:3 (4th ed. 2007).
(142) As for the likely assessment of damages in such a case, if the doctor's promise is treated like an ordinary commercial promise, then the standard measure of recovery is either compensatory damages (also known as "expectancy damages," an amount meant to put the plaintiff in the position that she would have been in if the doctor had fulfilled the original promise) or restitution damages (an amount that will restore to the plaintiff any benefit that she had conferred upon the defendant under the breached contract). Crerand et al., supra note 2, at 186. To calculate expectancy damages, some courts have suggested that the plaintiff should be awarded the difference between the value of the promised surgical results and the actual results. Id. The difficulty with such a formulation in the context of cosmetic surgery is that the relevant body part may be fully functional, while the value of the promised outcome is a subjective, aesthetic matter. Particularly if the patient suffered from BDD, the outcome could accord with what the surgeon believed the patient requested and the surgeon sought to achieve, but still be unsatisfactory to the patient. Moreover, assigning a monetary value to the subjective value of beauty is particularly problematic. Alternatively, reliance damages could be assessed. Id. at 187. This formulation provides compensation for any detriment (including, according to some, any suffering or distress resulting from the breach) incurred in reliance on the agreement. Id. at 187, 189. The rationale for awarding reliance damages in this context would be that the patient with BDD underwent the pain and expense of a surgical procedure to obtain a particular result and that this suffering and investment was wasted if the treatment failed to meet the patient's expectations. Id.
(143) 826 N.E.2d 909 (Ohio App. 2005).
(144) Id. at 910. The court granted the defendant's motion for summary judgment with regard to the plaintiff's claims against her plastic surgeon for fraud and medical malpractice. Id.
(145) Id. at 910-11.
(146) Id. at 911.
(147) Id. at 913.
(149) Crerand et al., supra note 2, at 175.
(150) Id. at 171; see also CODE OF ETHICS (Am. Acad. of Facial Plast. and Reconstr. Surg. 2000), at [section] 14 (facial plastic and reconstructive surgeons are expected to seek consultation from a colleague when facing "doubtful or difficult cases, or whenever it appears that the quality of medical service may be enhanced thereby").
(151) Crerand et al., supra note 2, at 175. As discussed infra Part III, it is likely that cosmetic surgeons could be held accountable for missing or ignoring the more egregious cases of BDD. In some instances, however, the symptoms of BDD will be very subtle and most cosmetic surgeons, even after receiving training in how to detect BDD in surgical candidates, will be unable to identify every patient with BDD. Accordingly, it would seem that the appropriate legal duty to impose on cosmetic surgeons is to conduct a good faith screening and to institute any additional necessary protocols reasonably designed to detect the presence of BDD.
(152) Indeed, the American Society of Plastic Surgeons warns prospective patients that under these circumstances "[s]ometimes, plastic surgeons will decline to operate on these individuals," or "recommend psychological counseling to ensure that the patient's desire for an appearance change isn't part of an emotional problem that no amount of surgery can fix." THE AMERICAN SOCIETY OF PLASTIC SURGEONS (ASPS), PSYCHOLOGICAL ASPECTS: YOUR SELF-IMAGE AND PLASTIC SURGERY (2008), available at http://www.plasticsurgery.org/Patients_and_Consumers/Planning_Your_Surgery/ Psychological_Aspects_Your_Self-Image_and_ Plastic_Surgery.html.
(153) See Id. Cosmetic surgeons should have candid conversations with their patients about how they feel about their appearance, how they believe others see them, and how they would prefer to look and feel. See id.
(157) While an estimated thirty percent of cosmetic surgeons believe that BDD is always a contraindication for surgery, others maintain that individuals with mild forms of the disorder might be able to benefit from (or at least would not be harmed by) cosmetic surgery if proper mental health care is provided in conjunction with the procedure, or if previous surgeries have caused visible damage to the patient's appearance and the surgery at issue has a reconstructive purpose. Crerand et al., supra note 2, at 176.
(159) Vindigni et al., supra note 32, at 307.
(161) Crerand et al., supra note 2, at 171.
(162) Fukushima, supra note 5.
(163) Crerand et al., supra note 2, at 171.
(166) Fukushima, supra note 5.
(167) Crerand et al., supra note 2, at 171.
(168) Tignol et al., supra note 34, at 522.
(169) See, e.g., Hoofnel v. Segal, 199 S.W.3d 147, 151 (Ky. 2006) ("The existence of a signed consent form gives rise to a presumption that patients ordinarily read and take whatever other measures are necessary to understand the nature, terms and general meaning of consent."); Mitchell v. Kayem, 54 S.W.3d 775, 781 (Tenn. Ct. App. 2001) ("Generally, the law presumes that a person who has signed a document, after having an opportunity to read it, is bound by his signature. This presumption applies in informed consent cases; thus, the existence of a signed consent form gives rise to a presumption that the patient gave his consent, absent misrepresentation, inadequate disclosure, forgery, or the patient's lack of capacity.") (internal citations omitted).
(170) See, e.g., Julien Reich, Factors Influencing Patient Satisfaction with the Results of Esthetic Plastic Surgery, 35 ESTHETIC SURG. 5, 10 (1975) (explaining one cosmetic surgeon's motivation to begin using "information sheets" that describe a given procedure and the necessary postoperative care).
(173) British Association of Cosmetic Doctors, Muscle Relaxing Injections (Botox / Botulinum Toxin), http://www.cosmeticdoctors.co.uk/botox.asp (last visited Feb. 6, 2010).
(174) Thomas C. Wiener, Lip Augmentation Houston Texas, http://www.plasticsurgeryhouston.com/lip.htm (last visited Feb. 6, 2010).
(175) FRANK B. VASEY & JOSH FELDSTEIN, THE SILICONE BREAST IMPLANT CONTROVERSY: WHAT WOMEN NEED TO KNOW 30 (1993).
(176) One study found that weight gain after a liposuction procedure was three times more likely in patients who failed to eat a healthy diet, and four times more likely in those who failed to exercise. See Rod J. Rohrich et al., The Key to Long-Term Success in Liposuction: A Guide for Plastic Surgeons and Patients, 114 PLAST. & RECONSTR. SURG. 1945 (2004).
(177) Crerand et al., supra note 2, at 171-72 (noting two studies which found that 21% to 35% of all requested cosmetic treatments were not obtained, primarily because of physician refusals).
(178) Id. at 172.
(179) Id. at 169.
(180) One survey reported that twenty-nine percent of aesthetic surgeons had been threatened with legal action by a patient with BDD. Crerand et al., supra note 2, at 175. Ten percent had received threats of physical violence. Id.
By Kristen Nugent, J.D., University of Virginia; Associate, King & Spalding LLP, Atlanta, Georgia. The author would like to thank Thomas Hafemeister for his editorial insights and Ben Doherty for his research assistance. Throughout this article, the author at times uses only the masculine singular or the feminine singular pronoun when referring to a patient or physician; such usage is for stylistic reasons only, and should not be construed as limiting the concept discussed to one gender or the other. Correspondence may be directed to firstname.lastname@example.org.
|Printer friendly Cite/link Email Feedback|
|Publication:||Developments in Mental Health Law|
|Date:||Jul 1, 2009|
|Previous Article:||Reviving the "Vietnam defense": post-traumatic stress disorder and criminal responsibility in a post-Iraq/Afghanistan world.|
|Next Article:||Competency of death row inmates to waive the right to appeal: a proposal to scrutinize the motivations of death row volunteers and to consider the...|