Zalazar v. Vercimak
199 Ill. Dec. 232, 633 N.E.2d 1223, 261 Ill. App. 3d 250 (1994)
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Rule of Law:
In an informed consent action involving purely esthetic cosmetic surgery, the plaintiff is not required to prove proximate causation through an objective standard (i.e., what a reasonably prudent person would have done). Instead, a subjective standard applies, and the plaintiff's testimony regarding whether they would have consented if properly informed is sufficient to present the issue of causation to a jury.
Facts:
- Mary J. Zalazar, a 55-year-old illiterate woman, consulted Dr. Michael P. Vercimak about surgically removing the bags under her eyes for cosmetic reasons.
- Dr. Vercimak told Zalazar he could make her look 20 years younger.
- On July 21, 1988, prior to undergoing a four-lid blepharoplasty, Zalazar signed a consent form that she could not read and that was not read to her.
- Zalazar testified she was never informed of any risks or possible complications associated with the procedure.
- Following the surgery, Zalazar suffered negative complications, including droopy eyes (ectropion), numbness, bruising, and blurred vision.
- Dr. Vercimak acknowledged in his testimony that potential complications such as loss of vision and ectropion should be disclosed to a patient before this procedure.
- Over a year later, Zalazar underwent a corrective surgery with a different surgeon, Dr. Carter, who did explain the risks of the repair procedure, to which Zalazar consented.
Procedural Posture:
- Mary J. Zalazar sued Dr. Michael P. Vercimak in the circuit court of La Salle County (trial court) for medical malpractice based on a failure to provide informed consent.
- The case proceeded to a jury trial.
- At the conclusion of the plaintiff's case-in-chief, the defendant moved for a directed verdict.
- The trial court granted the defendant's motion for a directed verdict, finding that the plaintiff failed to present objective evidence of proximate causation as required by Illinois law.
- The plaintiff's post-judgment motion for a new trial was denied.
- Plaintiff Zalazar appealed the trial court's order to the intermediate appellate court.
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Issue:
Does the objective standard for proving proximate causation in a medical malpractice informed consent case apply when the procedure at issue is purely esthetic cosmetic surgery?
Opinions:
Majority - Justice Barry
No, the objective standard for proving proximate causation is inappropriate for purely esthetic cosmetic surgery. Unlike medically necessary procedures, purely cosmetic surgery involves a subjective, personal choice where the alternative is simply to forego the procedure. The rationale for an objective standard, which relies on expert testimony to help jurors weigh complex medical risks and benefits, does not apply because the decision is not based on medical well-being. A so-called 'reasonable person' standard is unworkable because the choice is too personal and psychological for an expert to opine on. Therefore, the plaintiff's own testimony about what she would have decided if properly informed is sufficient to allow a jury to determine proximate causation.
Analysis:
This case creates a significant exception to the prevailing objective standard for causation in informed consent litigation. By carving out a special rule for purely esthetic cosmetic surgery, the court shifts the focus from a hypothetical 'reasonable person' to the actual plaintiff's subjective state of mind. This holding makes it easier for plaintiffs in this specific category of malpractice to survive a directed verdict and get their case to a jury. It also implicitly increases the burden on cosmetic surgeons to meticulously document their informed consent discussions, as they can no longer rely on the high bar of the objective standard to defeat causation claims.
