United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
PARTIAL SUMMARY JUDGMENT
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.
before the Court is Defendant, Dr. Jill Murphy's
("Dr. Murphy"), Motion for Partial Summary Judgment
on Plaintiff, Angela Veurink's ("Ms. Veurink")
claim for fraud and deceit. Doc. 23. For the following
reasons, the motion is denied.
Murphy is a board-certified plastic surgeon, and during the
events at issue in this case, practiced with Plastic Surgery
Associates of South Dakota ("PSA") from August 2014
through April 2018. Doc. 25, ¶¶ 2, 3; Doc. 29,
¶¶ 2, 3.
October 4, 2016, Ms. Veurink had her first appointment with
Dr. Murphy for a plastic surgery consultation. Doc. 25,
¶ 1; Doc. 29, ¶l. During the October 4, 2016,
appointment, Dr. Murphy and Ms. Veurink discussed an
abdominoplasty ("tummy tuck") with liposuction and
umbilical hernia repair. Doc. 25, ¶ 10; Doc. 29, ¶
10. Although Dr. Murphy's medical notes from this visit
do not mention breast surgery, Dr. Murphy and Ms. Veurink
both recall that they discussed breast surgery. Doc. 25,
¶ 11; Murphy Dep. 44:11-25. While it is disputed as to
exactly what Dr. Murphy and Ms. Veurink discussed during this
initial meeting about her breast surgery, both Dr. Murphy and
Ms. Veurink agree that Ms. Veurink talked about wanting to
have a smaller breast size. Doc. 25, ¶ 11; Doc. 29,
¶ 11. Dr. Murphy testified during their first meeting,
Ms. Veurink did not talk about submitting her breast
reduction procedure to insurance, and Ms. Veurink testified
that she and Dr. Murphy did not discuss insurance until her
second visit. Murphy Dep. 41:5-23; Veurink Dep. 66:20-22. Dr.
Murphy testified that because they had not talked about the
breast surgery being billed through insurance, she gave Ms.
Veurink a quote for a mastopexy, which is what Dr. Murphy
calls a breast lift, with or without a breast reduction, when
the patient is paying for the procedure out-of-pocket. Murphy
mastopexy is a breast lift and is typically done as a
cosmetic or self-pay procedure with the stated goal of
reducing the skin envelope so everything is lifted up higher
on the breasts for a more aesthetic appearance. Doc. 25,
¶ 12; Doc. 29, ¶ 12; Steele Dep. 64:14-23; Murphy
Dep. 10:6-12. In a mastopexy, the surgeon may remove some
tissue, but it is mainly skin. Steele Dep. 66:10-12. Breast
reductions, on-the-other-hand, can either be self-pay or
covered by insurance and the purpose of a breast reduction is
to make the breasts smaller. Steele Dep. 65:14-24; Murphy
Dep. 41:16-23. Nearly all breast reductions include a breast
lift and during Ms. Veurink's October 4, 2016,
appointment, Dr. Murphy explained that her breast reduction
would also include a breast lift. Doc. 25, ¶¶ 13,
14; Doc. 29, ¶¶ 13, 14.
breast reduction is a self-pay procedure, technically, there
is no minimum amount of breast tissue that has to be removed
before a procedure can qualify as a breast reduction. Steele
Dep. 66:1-6. Dr. Steele testified that the goal of a breast
reduction is to remove enough breast tissue, 300-800 grams,
to make the breasts smaller for symptomatic relief. Steel
Dep. 66:14-22; Jodi Pierret ("Ms. Pierret"), the
clinic manager at PSA for 27 years, also testified that
breast reductions generally have a larger amount of grams of
tissue removed. Pierret Dep. 51:15-52:3. By contrast, Dr.
Murphy testified that by definition, any amount of breast
tissue that is removed from the breast qualifies as a breast
reduction. Murphy Dep. 24:25-25:19 ("[W]hen you remove
breast tissue, you are reducing the size of the breast. And
so by definition, it is a breast reduction."). Dr.
Murphy did acknowledge that just removing skin would be a
mastopexy, not a breast reduction, but said "as part of
a mastopexy, it is accepted that you can remove breast tissue
and thereby perform a breast reduction as part of a
mastopexy." Murphy Dep. 23:15-24:7. Dr. Murphy testified
that there can be different volumes-small reductions and
large reductions, but that any time you remove breast tissue,
you are reducing the size of the breast. Murphy Dep.
Murphy testified that the main difference between a mastopexy
and a breast reduction, from a patient's perspective, is
who is paying for it and whether there is a minimal amount of
breast tissue that must be removed. Murphy Dep. 9:14-25. Dr.
Murphy testified that if a patient is paying for the surgery
out-of-pocket, "the amount of breast tissue taken out
would be 100 percent based on what the patient's goal
is" as they would not be required to take a minimum
amount out in order to qualify as a breast reduction surgery
by the insurance company's standards. Murphy Dep.
Ms. Veurink's initial appointment with Dr. Murphy on
October 4, 2016, Ms. Veurink received a price quote for the
procedures she and Dr. Murphy had discussed. When Ms. Veurink
saw "mastopexy" on the quote, she did not know what
it meant and went online to research what it was and saw a
lot of people referring to it as a breast lift. Ms. Veurink
Dep. 71:16-19. On October 13, 2016, Ms. Veurink scheduled
surgery at Rivers Edge Aesthetic Surgery ("REAS")
for November 15, 2016, and a second consult visit with Dr.
Murphy for November 1, 2016. Doc. 25, ¶¶ 32-35. Ms.
Veurink testified that she wanted to be sure that she and Dr.
Murphy were "on the same page as far as the breast
reduction goes." Veurink Dep. 66:16-20. On October 28,
2016, the computerized scheduling information that REAS and
PSA use to schedule clinic visits and surgeries shows that on
October 28, 2016, Ms. Veurink changed the date of her surgery
from November 15, 2016 to November 3, 2016. Doc. 27,
¶¶ 3, 4; Doc. 25, ¶ 32.
Veurink testified that during her November 1, 2016,
consultation, Dr. Murphy asked her what size she wanted to be
and that Ms. Veurink expressed that she would like to be a
large B/small C. Ms. Veurink Dep. 74:7-12. Dr. Murphy's
medical notes from the November 1, 2016, consultation state
that "breast reduction was discussed in detail" and
that Ms. Veurink expressed her desire to be a large B/small
C. Preheim Aff, Ex. 6. Although Dr. Murphy and Dr. Steele
testified that they never guarantee a patient will be a
certain cup size after surgery because cup sizes can vary so
much between brands of bras, they both testified that a
patient's answer to this question can give them a frame
of reference for how large the patient wants their breasts to
be in proportion to their frame. Murphy Dep. 51:24-53:7;
Steele Dep. 70:3-12. Given Ms. Veurink's DD breast size,
reducing Ms. Veurink's breasts to a large B/small C would
make Ms. Veurink's breasts smaller in proportion to her
frame. Steele Dep. 51:23-52:4. Despite the fact that Ms.
Veurink told Dr. Murphy that she wanted to be a large B/small
C, Dr. Murphy testified that Ms. Veurink wanted to be
proportional to her frame. Murphy Dep. 39:22-40:3; 53:8-12.
Ms. Veurink testified that she recalled telling Dr. Murphy
that "proportionality" was not something she was
concerned about, but rather the alleviation of her symptoms.
Veurink Dep. 80:21-25.
Ms. Veurink testified that Dr. Murphy told her during this
visit that she could remove about 250 - 350 grams of tissue
from each side of the breast, this fact is in dispute.
Veurink Dep. 74:10-12. Dr. Murphy acknowledges that she put
these numbers in her medical notes that day, but contends
that she did not inform the Ms. Veurink of these numbers
because she always added them at the end of the day after she
consulted a formula to help her estimate the amount of breast
tissue that would need to be removed for insurance purposes.
Murphy Dep. 70:5-8; 72:10-14.
Murphy's recollection of why Ms. Veurink returned for a
second consultation on November 1, 2016, was that she wanted
to get the procedure "[they] had talked about before,
which was cosmetic breast lift. . . paid for by her insurance
as a breast reduction." Murphy Dep. 38:19-23; Murphy
Dep. 45:18-24. Dr. Murphy testified that she told Ms. Veurink
that there was not really a difference in what they were
going to do procedurally, but that they were going to try to
get it covered by insurance. Murphy Dep. 38:16-21; 39:14-21;
Doc. 25, ¶32 ("The procedure was not going to be
any different... ."). Dr. Murphy stated that in order to
get it covered by insurance, they needed to document the
symptoms Ms. Veurink was experiencing from her large breast
size such as open sores, back and neck pain. Murphy Dep.
38:24-39:6. PSA staff took photos to document the scars and
sores under Ms. Veurink's breasts to submit along with
the insurance pre-authorization form. Veurink Dep. 55:5-14.
Dr. Murphy also documented in her medical notes the pain that
Ms. Veurink was experiencing due to her large breasts and the
alternative therapies that Ms. Veurink had tried which had
not alleviated her symptoms. Preheim Aff, Ex. 6. There is no
evidence in the record before the Court that Dr. Murphy told
Ms. Veurink that insurance companies require a certain amount
of breast tissue to be removed in order for it to be a
covered service, just that she had to give the insurance
company "an estimate of what [she] [thought] she could
remove to bring Ms. Veurink down to a size which is the size
she wanted to be and where she wanted to be proportionate to
her frame." Murphy Dep. 39:22-40:3. Dr. Murphy
testified that she told Ms. Veurink that "based on
whatever that particular insurance company's requirements
are-they all have different requirements to cover breast
reduction, then it would be either approved or not
approved," and that they could either appeal or do
whatever else is required by the insurance company to get it
covered. Murphy Dep. 40:10-24.
the November 1, 2016, visit, Dr. Murphy testified that she
told Ms. Veurink that she was going to perform a breast
reduction, but that they needed to submit to insurance and
wait to hear what insurance said before they could determine
if Ms. Veurink would be approved for a breast reduction.
Murphy Dep. 135:4-20. Dr. Murphy told Ms. Veurink that she
would ask for approval from the insurance company, but that
if they did not get it, Dr. Murphy could perform the same
procedure except that Ms. Veurink would pay for it
out-of-pocket. Murphy Dep. 136:6-11. Ms. Veurink testified
that it was her understanding that as long as PSA submitted
the pre-authorization form to the insurance company, they
could proceed with breast reduction surgery and that
ultimately, whether the procedure was covered by insurance
depended on how Ms. Veurink's insurer, Avera Health Plan,
responded to her request for pre-authorization. Veurink Dep.
November 2, 2016, a day before her surgery, Ms. Veurink paid
PSA $10, 685 for her surgery with the expectation that she
would be reimbursed for amounts paid for the breast portion
of her surgery if insurance approved the procedure. Veurink
Pierret testified that once an insurance company receives a
pre-authorization form for a breast reduction, it will
respond in approximately 10-15 days with either an approval
or a denial of the pre-authorization. Pierret Dep. 121:22-23.
Ms. Veurink's November 3, 2016, surgery was already
scheduled at the time of her November 1, 2016, follow-up
appointment with Dr. Murphy. Doc. 25, ¶ 32 ("On
October 28, 2016, at Veurink's request, the date of the
surgery was changed from November 15, 2016, to November 3,
2016."). At the end of the November 1, 2016,
consultation, Ms. Veurink was under the impression that she
would not likely receive pre-authorization prior to her
surgery, but that she could proceed with surgery as long as
the pre-authorization form had been submitted. Veurink Dep.
November 3, 2018, the day of the surgery, the nursing staff
at REAS, where the operation was performed, presented Ms.
Veurink with informed consent forms to sign which included a
bilateral formal mastopexy which Ms. Veurink understood from
her discussions with Dr. Murphy to be the breast reduction.
Veurink Dep. 112:18-25. Dr. Murphy told Ms. Veurink prior to
surgery that they had not yet heard back from insurance and
that she was giving Ms. Veurink the option of whether to send
the breast tissue removed to insurance. Veurink Dep. 79:4-18;
Preheim Aff, Ex. 6. Ms. Veurink decided that she did not want
to send the breast tissue to pathology because she knew that
a pathology bill could be expensive and thought that she
would save a little money in the event the insurance company
denied coverage. Veurink Dep. 79:19-80:1. Dr. Murphy
testified that it was her understanding when she went into
the operating room that day, that Ms. Veurink wanted to
proceed with the procedure out-of-pocket and that they were
not going to attempt to get it covered by insurance. Murphy
the tissue removed was not sent to pathology, REAS staff
weighed the breast tissue in the operating room and
documented it in the patient records. Preheim Aff, Ex. 10.
Although Dr. Murphy signed the patient record containing the
weight of the breast tissue, both she and Ms. Pierret
testified that they were unaware that REAS weighed breast
tissue independent of pathology if a claim was not being
submitted to insurance. Murphy Dep. 213:1-3; Pierret Dep.
107:18-108:2; 128:11-16. The amount of breast tissue that was
documented as having been removed was 101 grams from the
right breast and 121 grams from the left breast. Preheim Aff,
Ex. 10. Ms. Veurink testified that she assumed Dr. Murphy
knew that at the time of surgery that the tissue that was
removed had been weighed by REAS. Veurink Dep. 95:14-18.
the surgery, Ms. Veurink logged into her online patient
portal and noticed that there had yet not been a claim
submitted to her insurance. Veurink Dep. 101:13-25. On
November 28, 2016, and on several occasions thereafter, Ms.
Veurink inquired of PSA as to why no claim had yet been
submitted to insurance for her breast surgery. Veurink Aff,
Ex. C. A breast reduction pre-authorization form was not
completed by PSA and submitted to Ms. Veurink's insurer,
Avera Health Plans, until more than a month after
Veurink's surgery. Pierret Dep. 59:18-21; Preheim Aff,
Ex. 7. Ms. Pierret testified that during her 27-year tenure
with PSA, she was not aware of another instance in which the
clinic submitted a pre-authorization form to an insurance
company post-surgery. Pierret Dep. 1212:12-18. The
pre-authorization form documented the date of Ms.
Veurink's surgery as November 3, 2016, and stated that
Ms. Veurink had bilateral macromastia and suffered from
permanent shoulder grooving from bra straps, persistent
intertrigo at the inframammary folds, and back pain, open
sores under breasts with scarring. Preheim Aff, Ex. 7. The
estimated breast tissue removed was documented as greater
than or equal to 350 grams. Preheim Aff, Ex. 7.
Pierret testified that when attempting to complete the
pre-authorization form, she did not find anything documented
in Ms. Veurink's medical records to be considered a
breast reduction and so she spoke to Dr. Murphy about how
many grams were removed. Pierret Dep. 65:15-23. Dr. Murphy
stated that given she did not weigh the tissue "because
[they] didn't do this with the intention of sending it to
surgery," and since she alleges that she had no
knowledge that the tissue had been weighed by REAS, the best
she could do was estimate how much the breast tissue removed
felt in her hand which, Dr. Murphy testified, is what she
wrote in her addendum to the operative report. Murphy Dep.
209:11-210:10. Specifically, Dr. Murphy's addendum stated
Addendum to original operative report. Breast tissue was
removed from both the right and left breasts. Intra-op this
amount of tissue felt consistent with about 35Og per
side. Tissue was not sent to pathology per
Aff, Ex. 8.
45 days after Ms. Veurink's surgery, PSA received the
pre-authorization back from Avera Health Plans agreeing to
insure Ms. Veurink's surgery as a breast reduction.
Pierret Dep. 57:19-21. Thereafter, PSA submitted an insurance
claim for a breast reduction on behalf of Ms. Veurink to
Avera Health Plans. Pierret Dep. 57:17-21; 106:16-20;
115:6-11. The amount charged by PSA for the breast reduction
that was submitted to insurance was $10, 000, but pursuant to
the contract that PSA had with Avera Health Plans, PSA was
required to write off $6, 446.66, so the procedure was
approved for $3, 553.34. Pierret Dep. 116:4-25.
months prior to Ms. Veurink's surgery, Dr. Murphy had
become partner at PSA where she no longer received a salary,
but rather a percentage of revenue she brought in minus her
percentage of overhead and expenses. Pierret Dep. 91:9-11;
92:17-18; 98:6-9. If Ms. Veurink's breast reduction was
billed through insurance, Dr. Murphy's compensation would
be based on the $3, 553.34 that the insurance company
approved for the procedure, whereas the price for a mastopexy
paid for out-of-pocket was $4, 250, although Ms. Veurink
received a 50% multiple procedure discount and was thus
quoted $2, 125 for the mastopexy. Pierret Dep. 68:3-18;
receiving the insurance proceeds from the breast portion of
Veurink's surgery, PSA refunded Veurink $1, 776.93 that
she had paid out-of-pocket for the breast portion of the
surgery. Pierret Dep. 115:12-15; Hinton Aff, Ex. Veurink 8.
her surgery, Ms. Veurink had three post-operative visits with
Dr. Murphy in November 2016, December 2016, and February
2017. Veurink Dep. 86:19-21; 87:1-4. During her February 2017
visit, Ms. Veurink told Dr. Murphy that she was not happy
with the size of her breasts and that she still fit her DD
bras. Veurink Dep. 88:18-22. When Dr. Murphy inquired what
size she wanted to be, Ms. Veurink replied that as they had
discussed in her November 1, 2016, visit, she had wanted to
be a large B/small C. Veurink Dep. 88:18-22. Dr. Murphy's
medical notes from the February 2017 visit confirm that Ms.
Veurink told her she was still fitting in her DD bra, was
unhappy with the size of her breasts, and that she wanted to
be smaller, a size B/C. Preheim Aff., Ex. 6.
around March 14, 2017, Ms. Veurink submitted a letter to
Avera Health Plans stating that she did not believe she had
received a breast reduction and did not think that her
insurance company should have compensated PSA for a breast
reduction. Veurink Aff., Ex. B. Ms. Veurink stated that the
surgical notes stated that 101 grams and 121 grams of tissue
were removed from the right and left breasts respectively and
further stated that she believed that Dr. Murphy's
addendum to the surgical report, estimating that greater than
or equal to 350 grams of tissue was removed from each breast,
was fabricated in order to have insurance retro-authorize the
procedure. Veurink Aff, Ex. B. Both Ms. Pierret and Dr.
Murphy testified that they had not realized REAS had actually
weighed the breast tissue that had been removed during Ms.
Veurink's surgery until they received a letter from Ms.
Veurink referencing the weight of the tissue documented in
the surgical report. Pierret Dep. 127:5-10; 128:17-22.
receiving Ms. Veurink's complaint, Avera Health Plans
conducted a review and determined that Ms. Veurink's
records showed that a breast reduction was not performed, and
only a breast lift was completed. Veurink Aff., Ex. B.
Accordingly, PSA refunded to Avera Health Plans the money it
received for Ms. Veurink's breast surgery. Pierret Dep.
115:16-20. Ms. Veurink has not repaid PSA the amounts that
she was refunded for her insurance company's coverage of
her breast surgery. Pierret Dep. 115:21-24.
February 16, 2018, Ms. Veurink filed a complaint against Dr.
Murphy and an amended complaint on July 3, 2018, alleging
claims for medical negligence, and fraud and deceit. Docs. 1,
15. In her claim for relief, Ms. Veurink seeks the following
damages resulting from Dr. Murphy's alleged unlawful
conduct: 1) past and future medical expenses; 2) past and
future physical, mental, and emotional pain and suffering; 3)
past and future loss of bodily function; 4) past and future
loss of enjoyment of life; 5) lost wages and other
consequential financial damages; 6) punitive damages; and 7)
interest. In the event that the jury's verdict exceeds
the statutory maximum allowed ...