| Rodriguez v New York City Health & Hosps. Corp. |
| 2008 NY Slip Op 03383 [50 AD3d 464] |
| April 17, 2008 |
| Appellate Division, First Department |
| Marilyn Rodriguez, Respondent, v New York City Healthand Hospitals Corporation, Appellant. |
—[*1] Slingsby, Sanders & Pagano, Bronx (Carl Sanders and Christopher Pagano of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about August25, 2006, upon a jury verdict awarding plaintiff damages in this medical malpractice actionpredicated on lack of informed consent, unanimously reversed, on the law, without costs, and thecomplaint dismissed. The Clerk is directed to enter judgment accordingly. Appeal from order,same court and Justice, entered July 6, 2006, which denied defendant's motion to set aside theverdict, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff alleged that although she signed a consent form for the surgery, her lack of ability toread English rendered that consent invalid. She further claimed she was not properly advised bydefendant's surgeon that the recommended breast reduction surgery would leave hypertrophicscars, that he did not advise her of alternative treatment methods, and that her difficulty inunderstanding English prevented her from giving an informed consent.
"To recover damages for lack of informed consent, a plaintiff must establish, pursuant toPublic Health Law § 2805-d, that (1) the defendant physician failed to disclose the materialrisks, benefits, and alternatives to the contemplated medical procedure which a reasonablemedical practitioner 'under similar circumstances would have disclosed, in a manner permittingthe patient to make a knowledgeable evaluation', and (2) a reasonably prudent person in thepatient's position would not have undergone the procedure if he or she had been fully informed"(Dunlop v Sivaraman, 272 AD2d 570, 570-571 [2000], quoting subdivision [1] and citingsubdivision [3] of the statute). Where a plaintiff fails to adduce expert testimony establishing thatthe information disclosed to the patient about the risks inherent in the procedure is qualitativelyinsufficient, the cause of action for medical malpractice based on lack of informed consent mustbe dismissed (CPLR 4401-a; Gardner vWider, 32 AD3d 728, 730 [2006]), particularly where she has failed to prove that areasonably prudent person in her position would not have undergone the procedure had she beenfully informed of the risks of the procedure (Evans v Holleran, 198 AD2d 472, 474[1993]).
In this case, Dr. Cooper, plaintiff's expert, reviewed plaintiff's medical files and records [*2]and found no fault with the surgery itself. However, while testifyingthat it is essential in this type of surgery to inform the patient specifically of the kinds of scarringpossible, he did not indicate how the consent obtained by defendant's surgeon and medical staffwas insufficient. In fact, his opinion was based on a hypothetical question that presupposed thatplaintiff did not read or understand English, and that certain procedures which he deemednecessary were not followed, rather than what the actual evidence in this case revealed. Dr.Cooper further testified that he personally performed nearly 1,000 breast reduction surgeries, andthat in each case he discussed the full risks involved. Each of those patients elected to undergothe surgical procedure despite the stated risks.
Defendant's surgeon, while not specifically recalling the discussions with plaintiff concerningthe risks involved in this surgery, testified that consent is an ongoing process of discussionbetween physician and patient, and that not all risks or matters of discussion are set forth in thesigned consent form. Plaintiff testified that she had difficulty reading English and did notunderstand the consent form she signed for the surgery. She did not, however, ask to have aSpanish consent form or interpreter provided for the surgical consent, although she did sign aconsent in Spanish for general medical services to be provided by the hospital. Morever, althoughshe claimed to have difficulty understanding English when spoken, she testified that she acted asa translator for another Spanish-speaking patient while at the hospital. While Dr. Cooper anddefendant's two experts agreed that a lack of understanding of the English language wouldprevent a signed consent from being valid, there was insufficient evidence that plaintiff did notunderstand the discussions with defendant's surgeon or other hospital staff.
Of significance is the discrepancy in plaintiff's own testimony on the issue of whether shewould have proceeded with the surgery in any event. Although she testified on directexamination that had she known about the potential for wide scarring she would not haveundergone the procedure, she reversed course on cross-examination and testified that regardlessof the risks involved, she would have had the surgery because she wanted to alleviate the pain inher back and shoulders. Indeed, she was even inconsistent with how she came to be at the plasticsurgery unit of the hospital in the first place, initially stating she was referred there by thehospital clinic, but then stating it was her own idea to go to the plastic surgery unit to inquireabout breast reduction surgery.
In short, plaintiff's expert evidence did not establish that the information provided to her wasqualitatively insufficient, as a matter of law, to support the jury's finding that a reasonablyprudent person in her position would not have proceeded with the surgery had she been fullyinformed of the risks, benefits and alternatives (Public Health Law § 2805-d [3]; see Thompson v Orner, 36 AD3d791 [2007]). Concur—Nardelli, J.P., Williams, Sweeny and Catterson, JJ.