In re Berman
| Decision Date | 01 June 1993 |
| Docket Number | Bankruptcy No. 92-21477-BKC-SMW,Proc. No. 92-0704-BKC-SMW-A. |
| Citation | 154 BR 991 |
| Parties | In re Paul K. BERMAN, Dr., Debtor. Sheryl CORSI and David Corsi, her husband, Plaintiffs, v. Paul K. BERMAN, Dr., Defendant. |
| Court | U.S. Bankruptcy Court — Southern District of Florida |
Daniel E. Jacobson, Fort Lauderdale, FL, for plaintiffs.
Ira Gordon, Miami, FL, for defendant.
On July 30, 1992, Sheryl and David Corsi filed their AMENDED COMPLAINT against Paul K. Berman, the debtor. The court held a trial on the AMENDED COMPLAINT on March 2 and 3, 1993. At the trial the court granted the debtor's motion for a directed finding under 11 U.S.C. § 523(a)(2)(B) and (4). The court took the remaining matters under advisement following the time allowed for submitting proposed findings of fact and conclusions of law and responses thereto. For the reasons set forth below, the court grants the plaintiffs' AMENDED COMPLAINT and finds that the debtor's obligation to them is excepted from his discharge under 11 U.S.C. § 523(a)(2)(A) and (6).
Pursuant to 28 U.S.C. § 157(a) and the special authorization, assigning the undersigned to hear certain cases in the United States Bankruptcy Court for the Southern District of Florida, this case has been referred to this court for hearing and determination. After reviewing the record, the court determines that the matter before it is a core proceeding within the meaning of § 157(b)(2)(I) over which the court has jurisdiction pursuant to 28 U.S.C. §§ 157(b)(1) and 1334. This entry shall serve as findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52, made applicable in this proceeding by Federal Rule of Bankruptcy Procedure 7052.
The debtor, a doctor of osteopathy, filed his voluntary petition under Chapter 7 of the Bankruptcy Code on April 6, 1992. Prior to that time, on July 22, 1991, the plaintiffs received a state court judgment in the amount of $206,850 against the debtor and his professional association for medical malpractice (Plaintiffs' Exhibit I).1 The plaintiffs also received a $10,019.69 cost judgment against the debtor and his professional association (Plaintiffs' Exhibit J). In their AMENDED COMPLAINT the plaintiffs alleged that: (1) the surgical procedures which the debtor performed on Sheryl Corsi ("Mrs. Corsi") resulted in the disfiguring of her breasts, thighs, abdomen, and hips; (2) the debtor induced Mrs. Corsi to have a breast augmentation, although she originally sought to have only liposuction; (3) the debtor represented to Mrs. Corsi that he was a certified cosmetic surgeon; (4) the debtor failed to inform Mrs. Corsi prior to her operation that he had lost his surgical privileges at various hospitals and therefore had to perform cosmetic surgeries in his office; (5) the debtor represented that he was certified by the American Academy of Cosmetic Surgery, the American Academy of Cosmetic Breast Surgery, and the American Academy of Liposuction Surgery, but failed to inform Mrs. Corsi that these academies are self-designating bodies, not recognized by the American Board of Medical Specialties, the American Medical Association, or the American Osteopathic Association; (6) the debtor began doing cosmetic surgery with little or no professional training, having attended only three short seminars on the subject before he operated on Mrs. Corsi; (7) the debtor failed to inform Mrs. Corsi of his lack of experience in cosmetic surgery before performing surgery on her; (8) the debtor decorated his office with newspaper and magazine articles commending his abilities in cosmetic surgery, but did not advise Mrs. Corsi that the articles were paid advertisements that he had written; (9) Mrs. Corsi relied on the articles in selecting the debtor to perform her cosmetic surgery; (10) the debtor failed to have an escrow account, malpractice insurance, or an unexpired irrevocable letter of credit sufficient to pay a malpractice judgment against him in violation of Florida Statute 459.0085; and (11) the debtor neglected to post a sign in his office, notifying the public that he was not carrying professional liability insurance in violation of Florida Statute 459.0085. Based on these allegations and others, the plaintiffs asserted that the debtor's obligation to them should be excepted from discharge under 11 U.S.C. § 523(a)(2), (4), and (6).2 The challenges under § 523(a)(2)(A) and (6) remain for the court's consideration.
At trial the debtor testified that he graduated from Kirksville College of Osteopathic Medicine.3 The debtor received no training in cosmetic surgery in medical school. Following graduation, the debtor trained in general surgery and received his license to practice osteopathic medicine in the State of Florida. The debtor testified that the extent of his experience in cosmetic surgery prior to obtaining his license to practice medicine was assisting in two or three breast augmentations during his residency. One to two years into his practice, the debtor spent a week with a plastic surgeon in Atlanta.4 Approximately eight years later, in February 1987 the debtor attended a three-day seminar entitled "Liposuction for Beginners" sponsored by the American Academy of Cosmetic Surgery and the American Society of Liposuction Surgery. In March 1987 the debtor had four days of training with a cosmetic surgeon during which the debtor did one or two breast cases. The debtor agreed that in 1987 he relinquished his privileges to do general surgery at two of the three hospitals where he performed surgery, submitting that he resigned "under pressure" because he refused to give illegal "kick-backs." The debtor testified that he opened the Body Contour Institute in April 19875 and performed his first breast augmentation in July 1987. At the end of July 1987 he attended a three-day "Cosmetic Breast Surgery Workshop," also put on by the American Academy of Cosmetic Surgery and the American Society of Liposuction Surgery. In October 1988 and January 1989 the debtor attended two three-day meetings sponsored by the American Academy of Cosmetic Surgery and the American Society of Liposuction Surgery.
The debtor agreed that he operated on Mrs. Corsi on March 16, 1989, and that she obtained a judgment against him for malpractice. The debtor testified that he had done 100 to 150 breast augmentations and about 15 "circumareolar mastopexies" before operating on Mrs. Corsi. He indicated that if his patients had problems, he admitted them to the Florida Medical Center because he had surgical privileges there.6 The debtor testified that he could perform mastopexy and breast augmentation at the Florida Medical Center, beginning when he became an associate member of the Discipline of Osteopathic Plastic and Reconstructive Surgery. His privileges did not include the authority to do other types of cosmetic surgery. The debtor agreed that he was not eligible to perform either breast augmentation or liposuction at the Florida Medical Center when he operated on Mrs. Corsi in 1989.
The debtor testified that he wrote most of the articles and advertisements which appeared in newspapers and were framed in his office, although his name did not appear on them as the author. The articles discussed his cosmetic surgery practice. The debtor stated that he viewed the articles as part of a marketing program to let people know what he did and where he did it. He agreed that the Department of Professional Regulation for the State of Florida reprimanded him on more than one occasion for the content of the advertisements. In one instance the debtor failed to include an appropriate disclaimer in the advertisement and in another he improperly listed the credentials of several of the organizations in which he holds memberships. The debtor denied showing the plaintiffs the advertisements in his waiting room and denied telling them that he was a board certified cosmetic surgeon. He agreed that he told Mrs. Corsi that he was a cosmetic surgeon, although he actually was only a general surgeon. The debtor testified that he had to be extremely careful in describing his credentials because of the "turf war" between cosmetic and plastic surgeons.7 The debtor stated that he told Mrs. Corsi that he was a member of the American Academy of Cosmetic Surgery, the American Society of Liposuction Surgery, and the American Society of Cosmetic Breast Surgery and explained to her that the groups were not "fly-by-night" organizations. The debtor stated that although the organizations are self-designated and the American Osteopathic Association, the American Medical Association, and the State of Florida do not recognize them, the American College of Osteopathic Surgery grants continuing medical education credits for courses which the organizations offer.
The debtor testified that he told Mrs. Corsi that he had been doing cosmetic surgery for less than a year. He noted that the patient history form and consultation sheet which Mrs. Corsi filled out prior to meeting with the debtor included a checklist of applicable consultation matters, such as neck, chin, facial wrinkling, breasts (with two choices—augmentations or "Lift Berman Circumareolar Mastopexy"), and liposuction on various body areas. The debtor agreed that he included only these consultation matters on the sheet, because they were the only procedures he could perform in his office. The debtor testified that Mrs. Corsi checked only liposuction on the consultation sheet. He agreed that he offered Mrs. Corsi a discount of $300 if she had liposuction and breast surgery done at the same time, but could not recall if he suggested that Mrs. Corsi have cosmetic work done on her breasts. He agreed that he did not suggest that Mrs. Corsi see a plastic surgeon for a second opinion before having surgery. The debtor testified that he told Mrs. Corsi that she would look...
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