Allison Hugh was 380 pounds in 2002 when she underwent successful gastric bypass surgery. Reduced to 185 pounds, the then 38 year old Ms. Hugh was left with massive amounts of excess skin on her arms, abdomen and thighs.
To remove the unsightly and uncomfortable excess skin on her thighs, medial thigh lift surgery was performed on March 2, 2005.
Claiming that the thigh lift procedure left her with significant deformities of her vagina’s labium, Ms. Hugh sued her plastic surgeon Ferdinand Ofodile, M.D. and in July 2009 a Bronx County jury awarded her a $60,000,000 pain and suffering jury verdict ($10,000,000 past – 4 1/2 years; $50,000,000 future – 37 years).
The trial judge ordered a reduction of the damages to $4,000,000 ($1,000,000 past, $3,000,000 future).
This week, in Hugh v. Ofodile (1st Dept. 2011), the appellate court orderd a further reduction – to $600,000 ($300,000 past, $300,000 future).
Ms. Hugh claimed that Dr. Ofodile:
- removed too much tissue and
- failed to inform her that he’d perform a medial, as opposed to a lateral, thigh lift and therfore there was a lack of informed consent
The jury found for plaintiff on both theories and the appellate court affirmed the liability decisions.
The appeal also addressed the enormous pain and suffering verdict:
- Plaintiff’s counsel conceded that $60 Million was not sustainable. He suggested a reduction to $12,000,000.
- Defense counsel contended that the magnitude of the verdict suggested it could only have been the result of passion and prejudice against Dr. Ofodile and that the evidence of plaintiff’s pain and suffering was minimal and, therefore, the damages should be reduced to a sum substantially less than $1,000,000.
Plaintiff’s injuries included:
- abnormal appearance of her labia (graphic photos were shown to the jurors)
- discomfort during sexual relations
- emotional pain
The appellate court relied upon four prior cases in which "plaintiffs sustained injuries much more severe than those sustained by [Ms. Hugh]:
- L.S. v. Harouche (1st Dept. 1999) – $1,750,000 reduced from $4,000,000 for 18 year old who suffered from hypertrophy (enlargement) of her right labia majora resulting in unbearable pain when attempting sexual intercourse.
- Rabinowitz v. Elimian (2d Dept. 2008) – $750,000 affirmed for 32 year old with vaginal deformity following episiotomy to facilitate delivery of baby.
- Sutch v. Yarinsky (3d Dept. 2002) – $800,000 for 26 year old who underwent breast reduction surgery and was left with the loss of her entire left nipple areoa complex, a large scar and significant depression. Also, she underwent various debriding procedures.
- Beverly H. v. Jewish Hospital and Medical Center of Brooklyn (2d Dept. 1987) – $700,000 reduced from $1,500,000 for woman who underwent episiotomy to shorten the time of her labor and was left with a rectovaginal fistula requiring four operations including a colostomy.
- Before undergoing surgery with Dr. Ofodile, Ms. Hugh consulted three other surgeons, one of whom recommended a full body lift, two of whom recommended a medial thigh lift. She said she underwent surgery with Dr. Ofodile because he specifically told her he’d perform a thigh lift that did not expose her to the well known risks of vaginal deformity and labial distortion that were described to her by other surgeons who’d recommended a medial thigh lift.
- Plaintiff did not assert a lost earnings claim. She was unemployed at the time of trial having discontinued two jobs she had after her bypass surgery – an event planner and a "plus size" model.
- Plaintiff’s counsel will most likely reject the conditional reduction order and proceed to a new trial, encouraged by the 3-2 split decision with the minority opining that a reduction to $600,000 was too much and that $1,600,000 was an appropriate award.