## Facts

- Selma Lerner, a former concentration-camp inmate, sought surgical removal of a tattoo forcibly placed on her left forearm.
- Lerner consulted Dr. Yolande Huber, a plastic surgeon, and agreed to an excisional procedure to remove the tattoo.
- Lerner testified that Huber described the procedure as a “simple operation” and represented that only a “thin stripe” would remain and would “disappear” over time.
- Huber excised the tattooed skin, leaving a visible scar on Lerner’s forearm described as unsightly and approximately two inches by one inch.
- Lerner claimed the scar was more conspicuous than the tattoo and interfered with her work as a fashion model.
- Lerner sued alleging (1) medical malpractice in the surgery and aftercare and (2) liability based on unfulfilled representations about the cosmetic outcome.
- Huber denied making any warranty of result, maintained the care met accepted plastic-surgery standards, and asserted Lerner was treated as a clinic patient without personal payment to Huber.
- A defense expert plastic surgeon supported Huber’s technique as consistent with accepted practice; Lerner’s medical witnesses lacked experience in plastic surgery.

## Issues

1. Whether the plaintiff proved that the defendant deviated from the accepted standard of care for a plastic surgeon in performing the tattoo-removal surgery or providing post-operative care.
2. Whether the defendant made a definite, actionable promise or guarantee of a particular cosmetic result, creating liability when a conspicuous scar remained.
3. Whether the plaintiff presented competent, credible expert evidence and causation proof linking the scarring to malpractice rather than a known risk of excisional surgery.

## Decision

- Judgment was entered for Dr. Huber, and the complaint was dismissed.
- The court found Lerner did not prove a departure from accepted plastic-surgery practice in the operation or aftercare.
- The court found Lerner did not prove a definite contractual undertaking or enforceable guarantee of a scar-free or disappearing result.
- The court treated the resulting scar as a foreseeable consequence of surgical excision, not proof of negligence.

## Legal Principles

- A physician, including a plastic surgeon, is not an insurer of a successful cosmetic outcome; an unsatisfactory result alone does not establish malpractice.
- In specialized medical fields, proof of a breach of the standard of care generally requires competent expert testimony grounded in that specialty.
- Pre-operative assurances about likely improvement are generally not treated as an enforceable guarantee absent clear proof of a definite promise to achieve a specific result.
- When an adverse outcome is a known risk of the procedure and the physician follows accepted methods, causation is not established merely by the occurrence of that outcome.

## Conclusion

The court dismissed the claims because the plaintiff failed to establish, through competent specialty evidence, that the surgeon’s technique or aftercare fell below accepted plastic-surgery standards, and failed to prove a definite guarantee of a particular cosmetic result; the scarring was treated as a foreseeable risk of the procedure rather than actionable wrongdoing.


Lerner v. Huber, 139 N.Y.S.2d 549 (N.Y. Sup. Ct. 1955)