| Orphan v Pilnik |
| 2009 NY Slip Op 07476 [66 AD3d 543] |
| October 20, 2009 |
| Appellate Division, First Department |
| Joan Orphan, Appellant, v Samuel Pilnik, M.D., et al.,Respondents, et al., Defendant. |
—[*1] Martin Clearwater & Bell LLP, New York (Ellen B. Fishman of counsel), forrespondents.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered December 24,2007, which, insofar as appealed from as limited by the briefs, granted defendants' motion forsummary judgment dismissing the cause of action alleging lack of informed consent as againstdefendants Samuel Pilnik, M.D. and Lenox Hill Hospital, affirmed, without costs.
Plaintiff claims that because she was not told that the procedure would result in a 6.5centimeter scar, she did not give her informed consent to the removal of what turned out to be abenign lump in her right breast.
In support of their motion for summary judgment, defendants presented uncontradictedevidence that, after plaintiff went to her personal physician, Dr. Melvin Weinstein, complainingof a painful lump in her right breast, a mammogram and ultrasound study were performed andDr. Weinstein recommended that plaintiff see Dr. Pilnik, a specialist in breast surgery. After amanual examination of the breast, Dr. Pilnik recommended and, with plaintiff's consent,performed a fine needle aspiration, which withdrew cells for pathological analysis. Thepathologist diagnosed the right breast as "suspicious for carcinoma; suggestively lobular in abackground of proliferative breast lesion," and recommended excision. It is also undisputed thatbefore the suspicious lesion was removed, plaintiff signed a consent form authorizing Dr. Pilnikto perform a surgical procedure "for the removal of a nodule in right breast upper outerquadrant," in which plaintiff stated that the purpose of the procedure, its expected benefits,possible complications and risks, as well as possible alternatives, had been explained and that allof her questions had been answered fully and satisfactorily.
In opposition to defendants' motion for summary judgment, plaintiff flatly denied Dr. Pilnik'sassertion that he informed plaintiff of the risks involved, including scarring. She further statedthat she told Dr. Pilnik that she wanted a second opinion and asked whether the procedure wouldleave a mark on her breast. According to plaintiff, Dr. Pilnik responded: "No. You are gettinghysterical; this is a routine procedure and they do thousands at Lenox Hill Hospital." Plaintiffalso claimed that Dr. Weinstein told her, "[Y]ou have to do it," and that "a punch shot [*2]biopsy is no big deal, there would be no cuts or anything visible."In sum, plaintiff claims that she was led to believe that she was entering Lenox Hill for a biopsyand not a lumpectomy and that she was assured by all the doctors that there would be no cut orscar.
To establish a prima facie case of failure to procure informed consent to a medicalprocedure, a plaintiff must show that the doctor failed to disclose a reasonably foreseeable risk;that a reasonable person, informed of the risk, would have opted against the procedure; that theplaintiff sustained an actual injury; and that the procedure was the proximate cause of that injury(Public Health Law § 2805-d [1], [3]; Messina v Alan Matarasso, M.D., F.A.C.S.,P.C., 284 AD2d 32, 34 [2001]; Eppel v Fredericks, 203 AD2d 152, 153 [1994]). Asset forth above, defendants demonstrated that plaintiff signed a consent form after beinginformed of the surgical procedure and the alternatives, as well as the reasonably foreseeablerisks and benefits. Thus, it was incumbent upon plaintiff to adduce competent evidence sufficientto rebut defendants' prima facie showing (see Polcari v Dottino, 35 AD3d 190 [2006]).
While plaintiff's medical expert opined that, if plaintiff's statements are credible, it appearsthat she "was not informed properly of the invasive procedure," and that "the surgical scarappears to be excessively large (6.5 cm) in relation to the small area of concern and the tissuethat was ultimately removed (2 cm)," neither he nor plaintiff allege, let alone offer any evidence,that a reasonable person, having been told that she had a suspicious and possibly cancerouslesion in her breast, would not have undergone the procedure recommended by Dr. Pilnik, evenif she was told that it would leave a 6.5 centimeter scar. Thus, in the absence of any evidencesufficient to raise a triable question of fact regarding that necessary element, the motion courtcorrectly granted Dr. Pilnik summary judgment dismissing the complaint against him (see DeCintio v Lawrence Hosp., 33AD3d 329 [2006]).
Dismissal of the action as against respondent Lenox Hill Hospital was likewise correctinasmuch as a hospital is not vicariously liable either for the acts of a private attending physicianor for the act of a resident who followed the instructions of the attending physician (seeWalter v Betancourt, 283 AD2d 223, 224 [2001]). Concur—Andrias, J.P., Friedmanand Nardelli, JJ.
Acosta and Renwick, JJ., dissent in part in a memorandum by Renwick, J., as follows:Plaintiff commenced this action alleging injury due to medical malpractice based on negligenceand medical malpractice based on lack of informed consent after a breast biopsy to determinewhether she had breast cancer left a scar on her right breast. Dr. Samuel Pilnik, a breast surgeon,performed the biopsy at Lenox Hill Hospital. Supreme Court granted summary judgment to alldefendants and dismissed the entire action. The dismissal of the lack of informed consent claimagainst Pilnik and Lenox Hill is the sole issue on appeal. I would reverse that part of the orderthat dismissed the lack of informed consent claim against Pilnik. Accordingly, I respectfullydissent.
The relevant facts are as follows: The deposition testimony of the parties establishes that inNovember 1999, the then 41-year-old plaintiff, an exotic dancer, visited her primary carephysician, Dr. Melvin Weinstein, complaining of a painful lump in her breast. During theexamination, Weinstein felt a tender mass in the lateral aspect of plaintiff's right breast andreferred her for a mammogram. The mammogram revealed a "palpable abnormality" in the[*3]"posterior right breast in the 10 o'clock region" and furtherevaluation by ultrasound was recommended. An ultrasound study of her right breast revealed a"sonographically normal breast parenchymal tissue" with "[n]o sonographic evidence of adiscrete solid or cystic abnormality in the area of the palpable lump in the right upper, outerbreast," and it was recommended that further management be based on "clinical grounds."
Nevertheless, believing that breast cancer could not be ruled out because the mass remainedpalpable, painful and distinct from the surrounding breast tissue, Weinstein advised plaintiff tosee a breast specialist. Immediately, plaintiff visited Pilnik—one of the doctors Weinsteinhad recommended. Pilnik examined her right breast, felt a lump, and took a biopsy by fineneedle aspiration (FNA). A pathological analysis of the FNA tissue indicated a suspicious lesion.Upon receiving the results, Pilnik called plaintiff and recommended an excisional biopsy. Sheagreed. Pilnik made no other recommendations, explaining that the "other alternative" to thesurgical biopsy was to do a "core biopsy," which he rejected because the instrument is a "littlelighter, finer than that" and he did not believe that was an adequate test.
Plaintiff testified that Pilnik telephoned her about the results and informed her that she wasscheduled for a biopsy at Lenox Hill on December 20, 1999 and should call Weinstein to arrangefor prescreening blood work. When she expressed concern about any further biopsy and said thatshe wanted a second opinion, Pilnik told her not to make "a big deal about it." Pilnik also toldher that she would not have any scarring from the biopsy. Plaintiff testified that when she toldWeinstein that she did not want "any kind of marks on [her] breasts," Weinstein said that thiswas a "routine procedure" and she would not have a scar. He described the procedure as a"punch-shot biopsy" in which "they would stick a needle in the side of the breast, pull out a littletissue, and there would be no scar."
Pilnik performed the procedure at Lenox Hill. While he testified that he discussed theprocedure with plaintiff before performing it, plaintiff denies speaking with Pilnik that morning.
Upon plaintiff's arrival at Lenox Hill, Dr. Alexa Lessow approached her with a consent formauthorizing Pilnik to perform "the removal of a nodule in right breast upper outer quadrant."Plaintiff testified that she read the form, saw the phrase "excision of mass" and told Lessow thatshe was to have a "punch-shot biopsy," not an "excision." Lessow said, "It means the samething" and plaintiff signed the consent form. At her deposition, plaintiff identified her signatureon a copy of a consent form, but testified, "That's not the form. It said 'excision of mass.' That'swhat I remember it said."
The consent form, in addition to being at variance with plaintiff's testimony, does not spellout any risks of, or alternatives to, the procedure. It states that the risks and alternatives havebeen explained to the signer of the form. A few days after the procedure, the bandage onplaintiff's right breast fell off, revealing a 6.5 centimeter scar.
Supreme Court found that defendants established their prima facie case for dismissal of theclaim based on lack of informed consent by demonstrating that plaintiff signed a consent formafter being informed of the surgical procedure and its attendant discomforts and risks. The courtfound that plaintiff failed to raise a triable issue of fact as to the necessary element whether areasonable person, having been told that she had a suspicious lesion in her breast, would nothave undergone the procedure: "The plaintiff has never stated that had she known that a scar ofthe nature of the one that she bears would be the result of the procedure performed that shewould not have consented, but rather that had she been informed she would have sought [*4]a second opinion. Dr. Filardi's affirmation makes no mention ofwhat a reasonable person in plaintiff's position would have done. This failure is fatal to theplaintiff's opposition of [sic] Dr. Pilnik's motion for summary judgment" (citing Ericson v Palleschi, 23 AD3d 608,610 [2d Dept 2005]).
Plaintiff does not dispute that defendants made a prima facie showing of entitlement tosummary judgment; rather, she asserts that her medical expert's affidavit, as well as her affidavitand deposition testimony, considered together, create triable issues of fact that precludesummary judgment on the issue of lack of informed consent. I agree with the majority thatdismissal of the action against Lenox Hill was appropriate because Pilnik was not an employeeof the hospital but a private attending physician for whose acts the hospital is not vicariouslyliable (Walter v Betancourt, 283 AD2d 223, 224 [2001]). Nor is the hospital liable forthe acts of its resident, Lessow, as the record shows that Lessow followed Pilnik's instructions(id.). However, I depart from the majority's conclusion that the dismissal of the lack ofinformed claim against Pilnik was also appropriate.
To recover for medical malpractice based upon a lack of informed consent, a plaintiff mustprove that the physician providing the treatment or diagnosis failed to disclose "such alternativesthereto and the reasonably foreseeable risks and benefits involved as a reasonable medical. . . practitioner under similar circumstances would have disclosed, in a mannerpermitting the patient to make a knowledgeable evaluation" (Public Health Law § 2805-d[1]) and "that a reasonably prudent person in the patient's position would not have undergone thetreatment or diagnosis if he had been fully informed and that the lack of informed consent is aproximate cause of the injury or condition for which recovery is sought" (Public Health Law§ 2805-d [3]).
To prove the first element, i.e., that the information disclosed rendered the consentqualitatively insufficient, the plaintiff is required to adduce expert medical testimony (CPLR4401-a). Plaintiff satisfied her burden of raising an issue of fact as to the first element by thesubmission of an affirmation by Dr. Dominic Filardi. Dr. Filardi stated that "how [plaintiff's]breast would have looked after the operation should have been properly described to her prior to"the operation. In addition, plaintiff testified that she only consented to a nonscarring, minimallyinvasive biopsy of her breast and that she was not apprised of the risk of significant scarring(see Davis v Caldwell, 54 NY2d 176, 182-183 [1981]).
Supreme Court found that plaintiff failed to raise an issue of fact as to the second element,that a reasonable person, having been told of the suspicious lesion in her breast, would not haveundergone the recommended procedure if told that it would leave a large scar. I disagree.
Initially, it must be pointed out that the court erred when it found that plaintiff was requiredto adduce expert testimony on this issue and that the failure to do so was "fatal" to her case. Thecourt relied exclusively upon Second Department precedent for this proposition. This Court,however, has consistently held that expert testimony is not necessary on the issue whether areasonably prudent person, fully informed, would not have consented to the treatment (seee.g. Andersen v Delaney, 269 AD2d 193 [2000]; Hardt v LaTrenta, 251 AD2d 174[1998]; Osorio v [*5]Brauner, 242 AD2d 511 [1997],lv denied 91 NY2d 813 [1998]).[FN*]
Supreme Court further erred in finding that plaintiff failed to raise an issue of fact as to thesecond element because she never stated that she would not have undergone the recommendedprocedure if told that it would leave a large scar; she only said that she would have sought a"second opinion" if she had been properly informed. With this the majority concurs. I disagree.This finding misapprehends the nature of the evidence required to prove this element and, as aresult, misstates plaintiff's burden in opposing a summary judgment motion. The test of whethera reasonably prudent person would have consented if appropriate information had been given isobjective rather than subjective (Marchione v State of New York, 194 AD2d 851, 854[1993]; Dooley v Skodnek, 138 AD2d 102 [1988]). Thus, while the patient's testimonyas to what she would have done if informed is relevant, it is not determinative; there must also beevidence as to the risks associated with undergoing the treatment and those associated withforgoing it (Dooley v Skodnek, 138 AD2d 102, 106-107 [1988]; Zeleznik v JewishChronic Disease Hosp., 47 AD2d 199 [1975]).
Here, according plaintiff, the nonmovant, all reasonable inferences in her favor, I find thattaken together, her testimony that she would not have permitted the doctor to proceed with theexcision biopsy without a second opinion, if she had been fully informed of the risks ofsignificant scarring, and her expert's testimony that less invasive methods to diagnose thesuspicious breast lesion were available, raise an issue of fact whether a reasonably prudentpatient would not have had the excision biopsy if she had known the risks (see e.g. Eppel vFredericks, 203 AD2d 152 [1994]; Iazzetta v Vicenzi, 200 AD2d 209 [1994];Alberti v St. John's Episcopal Hosp.-Smithtown, 116 AD2d 612 [1986]).We cannot say as a matter of law that a reasonably prudent patient, newly diagnosed, fearful of"possible" cancer, and adamantly resistant to any scarring on her breasts, would have undergonethe excision biopsy even if the significant risk of scarring and any alternatives or lack ofalternatives to the biopsy had been disclosed to her.
Accordingly, defendants' motion for summary judgment dismissing the cause of actionalleging lack of informed consent as against defendant Samuel Pilnik, M.D. should have beendenied.
Footnote *: The Third and FourthDepartments have adopted the view of this Court on the issue (see Laribee v City ofRome, 254 AD2d 805 [1998]; Santilli v CHP, Inc., 274 AD2d 905 [2000]).