A new challenge to the concept of informed consent

The patient completed a thorough history and physical. She discussed the procedure at length with her surgeon and his staff. The patient read and signed all of the consent forms. The surgery went smoothly, and the results were excellent.

To the surgeon’s dismay, the patient soon became depressed and hysterical, angrily accusing him of ruining her looks and even her life. Dumbfounded, the surgeon tried to reason with his patient and assure her of her improved appearance, but he was shocked when this only made her angrier.

Shortly thereafter, the patient sued the surgeon, claiming medical malpractice, negligence, and lack of informed consent. That was the strangest part of all—the claim of lack of informed consent, despite the carefully prepared and executed informed consent documents.

The reason for the claim? The patient professed to have body dysmorphic disorder, which the surgeon “negligently” failed to diagnose, and which rendered the patient mentally unable to consent to a surgical procedure despite reading and signing the consent forms.

Does this nightmare scenario sound familiar to you? If not, it will likely become familiar because this highly alarming medical and legal trend is becoming increasingly common.


What Is BDD?

Body dysmorphic disorder, or BDD, is a psychiatric disorder that is characterized by a preoccupation with an objectively absent or minimal physical deformity that causes clinically significant distress or impairment in social, occupational, or other functional areas. This preoccupation with physical appearance is difficult to control, to the extent that it may even qualify as a handicap in one’s occupation or social life. Research indicates that BDD affects men and women equally.1

A BDD sufferer may spend several hours per day thinking about his or her perceived defect, may avoid appearing in public, or may feel extremely anxious or self-conscious in public. Typically, the BDD sufferer spends significant time on efforts to camouflage the perceived defect. Excessive grooming, checking appearance, comparing oneself to models, dieting, and exercising are common. Treatment is difficult and usually includes serotonin-reuptake inhibitors, sometimes combined with cognitive behavior therapy.

Unfortunately, BDD is a hidden disorder, and the exact incidence is unknown—estimates range from 0.2% to 7% of the population at large. Estimates of its incidence in aesthetic plastic surgery patients are higher, generally ranging from 2 to 15%,2,3 although some estimates are even greater.

As a rule, BDD patients re-spond poorly to aesthetic procedures. Even the most successful results usually do not help diminish their anxiety about their appearance. In fact, plastic surgery usually exacerbates their distress. These patients often believe that the surgery was botched and made the defect even worse, giving rise to new appearance preoccupations. Even a minor procedure can trigger violence, suicide, or psychosis. Patients may react by seeking further surgery, and some sufferers, out of desperation, may even attempt to perform surgery on themselves.

Patients with extreme BDD may try to get revenge against their physicians for “ruining” their appearance. In a handful of the most extreme cases, BDD patients have become so violent toward their treating physicians that they have even murdered them, blaming them for ruining their lives. But in the majority of cases, BDD patients resort to legal redress against their treating physicians, claiming medical malpractice, negligence, and lack of informed consent.


A Classic Case

The classic scenario of the aesthetic plastic surgery patient with BDD is illustrated by the case of Lynn v Hugo,4 an action for damages for medical malpractice and lack of informed consent. Prior to an operation for abdominal liposuction, the physician (and defendant in this case) discussed the procedure with the patient and advised her about the risks. The patient acknowledged the risks, executed a consent form, and, in her own handwriting, indicated “I understand” on her hospital chart.

The patient claimed that the procedure failed to produce the desired results and underwent a second procedure, an abdominoplasty. Before this surgery, the physician informed the patient about the risks associated with the procedure; the patient then acknowledged in writing her understanding of the risks and executed a consent form. The patient was again dissatisfied with the results and commenced a medical malpractice action against the physician, alleging lack of informed consent and medical malpractice.

Specifically, the patient claimed that she lacked the capacity to consent to the procedures because she suffered from BDD.

She claimed further that her history of numerous aesthetic, and therefore “unnecessary,” surgeries, together with the physician’s knowledge of her use of antidepressant medication, should have alerted him to her condition, and that the physician was negligent by not referring her to a psychiatrist instead of performing the surgeries. The patient was not under psychiatric care at the time of her surgeries, and, in fact, in-dicated on a medical questionnaire that she did not suffer from a psychiatric illness.

Fortunately, the physician emerged as the victor in this case, but not before the patient submitted affidavits from two “expert witnesses”: a plastic surgeon and a psychiatrist who both claimed that her depression and obsession with her appearance were “consistent with a form of BDD” and that the surgeon should have ascertained the patient’s mental condition before performing the surgeries.


Alarming Trends

Despite the fact that the surgeon in this case was awarded a summary judgment, there are three extremely alarming trends that have emerged in the wake of this case:

• the proliferation of so-called “expert witnesses” who will testify that a surgeon is negligent in failing to identify BDD, even when the patient has no history of mental illness;

• the proliferation of so-called “expert witnesses” who will testify that a surgeon has committed medical malpractice by performing surgery on a patient later diagnosed with BDD; and

• the claim that BDD—substantiated or otherwise—may greatly erode the protection of informed consent, leaving the surgeon vulnerable to a medical malpractice claim despite a thorough informed consent procedure.

Because it is possible today to find “expert witnesses” who will testify to almost anything against their fellow physicians, plastic surgeons are no longer protected by simply adhering to a reasonable standard of care. To truly protect themselves from lawsuits against patients suffering from BDD, or claiming to suffer from BDD, aesthetic plastic surgeons have to become diagnosticians to screen their patients carefully for signs of BDD. Any red flag should deter a surgeon from performing a procedure on a patient he or she suspects may have BDD. The surgeon should instead refer the patient to a psychiatrist for an evaluation, explaining that the procedure may not be in the patient’s best interest. Not only does this approach protect the patient from mental anguish, it also protects the physician from liability.


Screening Patients

The best way to screen patients for BDD and protect yourself from liability is to have an attorney familiar with BDD prepare a special questionnaire for patients to complete as part of their health histories. Alternatively, you can prepare your own BDD-screening questionnaire using the following guidelines:

• Assess the individual’s attitude and emotions toward the aesthetic problem and the level of distress and disability associated with it. The history and physical may include questions such as: “How much time per day do you spend on thoughts about your appearance?” and “How much time per day do you spend on activities related to your appearance?”

Red flags include perceived defects that are slight or nonexistent coupled with large amounts of time spent each day worrying about the problem, evaluating it, or attempting to camouflage it. A patient’s report of spending 1 hour or more per day on these activities should signal a warning to the surgeon.

• Also ask your patients questions about how they compare to others, such as “How do you rate your overall attractiveness as compared to the rest of the population?” and “How do you rate your area of concern as compared to the rest of the population?”

• Determine whether there is any functional impairment, such as social avoidance, due to anxiety about the perceived defect. Ask whether the patient experiences problems at work, at home, or in social situations. Ask how often the patient socializes, and take note of patients who report that they don’t date or socialize regularly, or have trouble holding down a job because of the perceived defect. About 25% of BDD patients have a history of being housebound at some point in their lives due to the perceived defect.5

• Be on the alert for unrealistic expectations about the outcome of a procedure. Assess expectations by exploring for beliefs that surgery will change the patient’s life, self-worth, or career success, or will fix a relationship.

• Review past aesthetic interventions. Include the number of previous procedures and their outcomes as perceived by the patient. Be on the alert for patients who have had numerous procedures performed by many practitioners, particularly when they express dissatisfaction with procedures that are actually technically acceptable. Be wary of patients who have something done every 1–2 years or who have had so many procedures that they no longer look natural, yet still want more surgeries.6

• Take a thorough history of the patient’s psychiatric background and current mental state. A long history of mental illness is an obvious red flag, but patients with BDD may present or claim to present without any history of mental illness at all. BDD frequently goes undiagnosed, in part because patients tend to be secretive about their concerns. These patients also often resist psychiatric treatment because they believe their problem is physical.

When mental illness is revealed, comorbidities include depression, social phobia, and other obsessive–compulsive disorders. Look for physical manifestations such as excessive skin picking or hair plucking. Of course, inquire as to a history of any suicidal thoughts or attempts. Approximately 30% of BDD patients have attempted suicide.5

• Search for a history of severe teasing or abuse when the patient was a child. Ask patients to describe any such incidents. Many BDD sufferers have these experiences in common.

• Seek to determine whether the patient believes that others are laughing at or talking about his or her perceived defect.

• Take a thorough history of any hospitalizations, medications, and previous surgeries. Go beyond the standard H&P questions and ask how often the patient visits or has visited a nutrition counselor, beautician, dermatologist, or endocrinologist, or gets electrolysis, facials, or the like. Ask how much money is spent on these treatments in a given month. Ask whether the patient is usually satisfied with the results of these treatments.

• Don’t be afraid to ask about the use of beauty products. Also ask how often the patient looks or avoids looking in the mirror, wears certain clothes to camouflage body parts, or avoids crowded places.


Listen but Don’t Agree

This type of questioning should help screen out patients with moderate to severe BDD. However, it is impossible to completely avoid unhappy outcomes in patients, whether they have BDD or not. When faced with an unhappy or potentially litigious patient, or one who you suspect has BDD, avoid defensive posturing that often leads the patient to feel abandoned and unappreciated. The “abandoned and unappreciated” patient is more likely to be litigious.

Reassure the patient that you are listening, yet listen without implying agreement. Restate the patient’s concern. Schedule return visits at regular intervals because concerns and dissatisfaction may resolve over time.3 If you suspect that your patient has BDD, never attempt to discount the patient’s concerns. Instead, refer the patient to a psychiatrist.

Ultimately, in addition to being physicians, artists, academicians, and now psychiatrists, surgeons today must be their own advocates. Do not discredit any gut instinct against accepting a particular individual as a patient. You are most likely doing both the patient and your practice a favor in the long run. PSP

Lindi L. Rosen, JD, is an attorney who practices in Boca Raton, Fla. She can be reached at [email protected]


R
eferences

1. Phillips KA. Dufresne RG Jr. Body dysmorphic disorder: A guide for primary care physicians. Prim Care. 2002;29:99–111.

2. Castle DJ, Honigman RJ, Philips, KA. Does cosmetic surgery improve psychosocial wellbeing? Med J Aust. 2002;176:601–604.

3. Porter GT. Preoperative evaluation of the aesthetic patient. Grand Rounds Presentation, UTMB, Dept of Otolaryngology; 2004.

4. Lynn v Hugo, NY Int 68(2001).

5. Penzel FI. Body dysmorphic disorder: Recog­ni­tion and treatment. Medscape Psychiatry & Mental Health. 1997;2(1). Available at: http://www.medscape.com/viewarticle/431513_print Accessed August 10, 2005.

6. Honigman RJ, Comm B, Phillips KA, Castle DJ. A review of psychosocial outcomes for patients seeking cosmetic surgery. Plast Reconstr Surg. 2004;113: 1229–1237.