Zalazar v. Vercimak

Appellate Court of Illinois · Torts

Tortsmedical malpracticeinformed consentcosmetic surgeryinformed consentfailure to warnmedical malpracticeproximate cause

Facts

Plaintiff underwent an elective four-lid blepharoplasty to reduce bags under her eyes and improve her appearance. She testified that she could not read the consent form, it was not read to her, and she was never told of any risks or complications before surgery. After the operation she experienced blurred vision, bruising, numbness, lumps, droopy eyelids, and lower lids pulling away from the eyeballs. Defendant testified that major or common complications of the procedure included loss of vision and ectropion and that at least those risks should be disclosed, but he did not specifically testify that he actually disclosed them to plaintiff.

Issue

In a failure-to-warn medical malpractice action involving purely esthetic cosmetic surgery, must the plaintiff present objective or expert evidence that a reasonably prudent person in her position would have refused the procedure if properly informed of the risks? Or may proximate causation be decided by the jury without such objective or expert proof?

Rule

For purely esthetic cosmetic surgery involving no medical necessity, no medically significant benefit, and an obvious alternative of forgoing the procedure, objective or expert evidence of what a reasonable person would have decided is not required to prove proximate causation in an informed-consent action. In that category of cases, the jury may determine proximate causation from the testimony concerning the disclosures that should have been made, the disclosures actually made, and the plaintiff's evidence bearing on her decision.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Chicago, Lena Ortiz paid for an elective rhinoplasty solely because she wanted a narrower nose for appearance reasons. After complications left her with breathing discomfort and scarring, she sued Dr. Aaron Pike, alleging he never disclosed the risks; at trial, she offered her own testimony that she would have declined the surgery but no expert testimony that a reasonably prudent person would have refused it.

If Dr. Pike moves for a directed verdict on the ground that Lena failed to present objective or expert evidence of proximate cause, how should the court rule?

Explanation. The majority limited its departure from the usual objective approach to purely esthetic cosmetic surgery involving no medical necessity or medically significant benefit, where the alternative is simply to forgo the procedure. In that category, expert or objective proof of what a reasonable person would have done is not required; the jury may assess proximate cause from the testimony about what should have been disclosed, what actually was disclosed, and the plaintiff's evidence about her decision.