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Surgeon Sued for Giving Anesthetized Patient Temporary Tattoo

July 16, 2008

By Don Sapatkin, The Philadelphia Inquirer

Jul. 16–In a lawsuit filed yesterday, a Camden County woman accused her orthopedic surgeon of “rubbing a temporary tattoo of a red rose” on her belly while she was under anesthesia.

The patient discovered the tattoo below the panty line the next morning, when her husband was helping her get dressed to go home after the operation for a herniated disc, her attorney, Gregg A. Shivers, said in a phone interview yesterday.

“She was extremely emotionally upset by it,” said Shivers. The suit, filed on behalf of Elizabeth Mateo in Camden County Superior Court, seeks punitive and compensatory damages from Steven Kirshner, a board-certified orthopedic surgeon with offices in Marlton and Lumberton, both in Burlington County.

Kirshner does not deny placing the tattoo — and has left washable marks on patients before to improve their spirits, his lawyer, Robert Agre of Haddonfield, said last night. He said none has complained.

“What’s offensive about this complaint is that it suggests something he did was intended to be prurient, and nothing could be further from the truth,” said Agre. “It was intended just to make the patient feel better.”

Nevertheless, said Art Caplan, chairman of the University of Pennsylvania School of Medicine’s Department of Medical Ethics, “you cannot do something like this even as a joke.”

“If it’s true,” said Caplan, whose knowledge of the case was limited to a reporter’s summary, “she’s got a case.”

Caplan recalled news reports of other cases where physicians left an inappropriate mark, such as a football logo, which had a legitimate purpose, such as indicating the placement of an organ for a future cut.

In a highly publicized case in 1999, a doctor in New York City went further by carving his initials into a patient’s abdomen after delivering her baby by Caesarean section.

Mateo, the patient from Pennsauken, declined to comment last night.

Shivers, who practices in Cherry Hill, would describe his client only as a clerical worker in her mid-30s with a husband and young children.

Her suit does not criticize the operation’s quality and names only the surgeon who performed the operation at Virtua Memorial Hospital Burlington County on April 28. The health system released a statement saying “the Mateo family has acknowledged that Virtua was in no way responsible for the incident.”

In an announcement about the civil action, Shivers said that the hospital had “immediately conducted a diligent and responsible investigation” that found no witnesses. “The patient reports that the hospital has treated her with appropriate respect and professionalism as she has gone through this difficult experience,” the statement concluded.

Part of his client’s concern, Shivers said, was knowing what took place.

“We’re assuming that it would have to have happened after surgery,” he said, “because during surgery she would be on her stomach.”

In addition to the lawsuit, Shivers said he mailed a related complaint to the New Jersey Board of Medical Examiners yesterday.

The board said it had no record of past actions against Kirshner, and hadn’t received the complaint in the mail.

The doctor’s attorney, Agre, who had seen neither the board complaint nor the lawsuit, said the doctor had “never been accused of anything.”

“Most of the patients are delighted by Dr. Kirshner’s sense of humor,” he said, adding that the 51-year-old surgeon who lives in Lumberton and did his medical training at Hahnemann University Hospital in Phildelphia is “renowned as a jovial guy and regarded as a doctor who has terrific relations with his patients and with his staff.”

“He vigorously denies that any action of his was intended to offend the patient,” Agre said, noting that the marks the surgeon has left on his patients “are like children’s tattoos. Kids put them on themselves and they wash right off.”

Frank Farley, a psychologist at Temple University who was read a summary of the lawsuit, speculated about why a surgeon who had performed an operation on the back would leave a red rose on his patient’s belly.

“It is not part of the doctor-patient relationship in that case,” said Farley, a former president of the American Psychological Association who studies risk-taking personalities and behavior.

“Unless you think you are Georgia O’Keeffe and you think people’s bodies are your canvas,” he said, “why would you take that risk?”

Contact staff writer Don Sapatkin at 215-854-2617 or dsapatkin@phillynews.com.

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