When a cosmetic surgery patient signs an informed consent form that says there may be scarring after surgery, it doesn't necessarily protect the physician from negligence for any scars that a patient develops, according to a New York Supreme Court ruling issued last month.
In an opinion released on April 13, a panel of judges on the Supreme Court, Appellate Division Second Department, sent a lawsuit between Natalie Wilson-Toby and Staten Island cosmetic surgeons Sheila Carol Bushkin, MD, and Robert Cattani, MD, back to trial in state court in King's County.
Citing previous New York decisions, the court wrote that unless consent forms are extremely specific, they do not establish, as a matter of law, that the scar a patient actually develops is consistent with the type of scar that the patient had been told was a possible risk of the procedure. In Ms. Wilson-Toby's case, the consent form and the surgeons' discussions with her did not sufficiently warn Ms. Wilson-Toby of the risks, according to the decision.
The decision stems from a medical malpractice lawsuit filed in 2004 against the surgeons and the Pavillion for Cosmetic Surgery in Staten Island for undisclosed damages. Drs. Buskin and Cattani performed cosmetic breast surgery on Ms. Wilson-Toby in April 2003. Afterwards, Ms. Wilson-Toby developed "significant scarring and has been caused to suffer severe physical injuries, pain and mental anguish," according to court documents. If she had known of the risks, she wouldn't have agreed to the surgery, says her complaint.
The surgeons had asked that the lawsuit be dismissed because Ms. Wilson-Toby had signed an informed consent form. In court documents, the surgeons said that Ms. Wilson-Toby was aware of the risks because she read and signed the form. But 2 appellate courts denied their request to have the case thrown out. "The consent forms advised the plaintiff generally that the surgery would result in permanent scars without giving any specific description of the location, nature, extent, or appearance of the scars," wrote the appellate judges for the higher court.
An attorney representing Ms. Wilson-Toby declined to comment on the case because it's pending litigation. An attorney for the surgeons did not return a request for comment. A trail date has yet to be announced.
Kent Steinriede
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