Mask and gloves come off at plastic surgery consent trial

Daily Record, The (Baltimore), Apr 25, 2003 by Peter Geier

The Midwest artist suing Johns Hopkins Hospital Inc. for a doctor's alleged failure to advise him fully as to the material risks of plastic surgery acceded to the jury's request to give his testimony without the prosthetic chin bra he claims he must wear to help stabilize his lower face.

Lawyer Alan J. Belsky asked his client, Mark S. Mahler, to explain the device Mahler improvised to support his lip -- which, as Hopkins' lawyer Ronald U. Shaw noted in court on Wednesday, is a shoelace.

Mahler demonstrated to jurors how he ties the long black shoelace, which he said he has been using every day for about two years, pulled down from the top back of his head, under his right ear and over his left, right below his lower lip where he knots it.

"It's lower on the right -- this is going to sound really dumb. But if I tie it this way it kind of pulls it in and up but it just gives it better support," Mahler said.

"It looks and sounds stupid -- I never wanted to wear a stupid shoelace around my head, but it was a last-ditch effort," he said, adding that the chin bra, which he said he generally wears only in public, "helps hold things together."

Not only does the shoelace hold his lip in place, Mahler claims; it also prevents what he said is "excruciating pain" -- an expression Shaw suggested on cross-examination to be an exaggeration.

"Would it be the same kind of pain I would feel if I were to hit my shin as hard as I could with a hammer?" Shaw asked him.

"It's not an exaggeration!" Mahler replied. "I feel like screaming without wearing the shoelace."

Mahler asked for a break before lunch, saying that his "pain was too much;" he resumed testimony 15 minutes later wearing the chin bra.

Another alleged "exaggeration" at issue yesterday was an enlarged color photograph -- a self-portrait of Mahler's face purportedly taken after his first surgery at Hopkins, showing his lower lip "drooping" low enough fully to reveal his lower gums.

"There is no way on this planet that that lip position is at rest," defense expert Dr. Barry A. Zide testified Wednesday, calling the plaintiff's use of the exhibit "spurious."

"That's a picture of a guy holding his lip down. You can't look like that unless you're doing it purposefully," Zide testified.

However -- in direct contradiction to one of his treating physician's records -- Mahler repeatedly insisted that the photograph truly showed what he looked like after the surgery.

"When I rested my mouth, that is what I looked like," Mahler told Shaw. "This is what that photo is."

A dispute also is taking shape regarding Hopkins' record keeping.

While Shaw tried to walk Mahler through his rather involved medical history using the records, Mahler repeatedly insisted that Hopkins' records of his visits are "totally unreliable," with "totally bizarre dates."

"Why are we looking at the medical records?" Mahler asked Shaw during cross-examination.

"Excuse me," intervened Judge Allen L. Schwait. "You don't ask questions, you answer questions."

The skirmish continued through Shaw's cross-examination, with the lawyer objecting that Mahler's responses were "nonresponsive" and "totally nonresponsive."

On redirect, Belsky marched several paired sets of documents before the jury purportedly bearing the same date and different information. The Hopkins doctors have yet to testify in the case.

Mahler's single claim against the hospital is that a surgeon failed to obtain his informed consent. No doctors are defendants in the action. The case is unusual in that it involves only the issue of Mahler's informed consent -- there are no claims alleging the surgery was negligently performed.

Frances P. Bloom, of Perkisie, Pa., a cosmetologist and Mahler family friend who accompanied Mahler to his consultations with Hopkins' doctors and surgeries, took the stand after counsel had finished with Mahler yesterday afternoon.

Bloom's testimony continued after press time.