| Wilson-Toby v Bushkin |
| 2010 NY Slip Op 03117 [72 AD3d 810] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Natalie Wilson-Toby, Respondent, v Sheila Carol Bushkinet al., Appellants. |
—[*1] Gair, Gair, Conason, Steigman, MacKauf, Bloom & Rubinowitz, New York, N.Y. (RhondaE. Kay of counsel), for respondent.
In an action to recover damages for medical malpractice and lack of informed consent, thedefendants appeal (1) from so much of an order of the Supreme Court, Kings County (Steinhardt,J.), dated January 13, 2009, as denied that branch of their motion which was for summaryjudgment dismissing the second cause of action to recover damages based upon lack of informedconsent, and (2), as limited by their brief, from so much of an order of the same court dated June11, 2009, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated January 13, 2009, is dismissed, as that orderwas superseded by the order dated June 11, 2009, made upon reargument; and it is further,
Ordered that the order dated June 11, 2009, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff underwent elective cosmetic breast surgery performed by the defendant doctors,Sheila Carol Bushkin and Robert V. Cattani (hereinafter the defendants). The plaintiffcommenced this action, alleging that the defendants performed the surgery improperly, causingdisfigurement and significant scarring. The complaint alleges causes of action seeking to recoverdamages for medical malpractice and lack of informed consent.
The defendants moved for summary judgment dismissing the complaint, and the SupremeCourt denied their motion in its entirety. On this appeal, the defendants challenge only the denialof that branch of their motion which was for summary judgment dismissing the cause of actionsounding in lack of informed consent. The exhibits submitted in support of the motion includedthe deposition testimony of the plaintiff and of the defendants, medical records, and consentforms signed by the plaintiff. The consent [*2]forms advised theplaintiff generally that the surgery would result in permanent scars without giving any specificdescription of the location, nature, extent, or appearance of the scars. In a supporting affidavit,Cattani opined that the consent forms established that the plaintiff "was advised of the risks,benefits and alternatives to the surgical procedures" and that "a proper informed consent wasobtained."
Contrary to the defendants' contention, the consent forms signed by the plaintiff "do notestablish, as a matter of law, that the scarring that the plaintiff actually experienced as a result ofthe procedure was, in its nature and in its extent, consistent with the type of scarring that, prior tothe procedure, the plaintiff had been told to consider as being among the reasonablyfor[e]seeable risks of the proposed procedure, or that a reasonable, fully informed person in theplaintiff's position would have undergone the procedure despite the existence of such risk"(Colon v Klindt, 302 AD2d 551, 553 [2003] [internal quotation marks omitted]; see Rezvani v Somnay, 65 AD3d537, 538-539 [2009]). Nor did the defendants establish the content of additional disclosuresmade beyond those contained in the consent forms. The deposition testimony raises a factualdispute between the plaintiff and the defendants as to the content of additional warnings andinformation they may have given the plaintiff prior to surgery. The existence of triable issues offact in the defendants' moving papers precludes a finding that they established their prima facieentitlement to judgment as a matter of law sufficient to eliminate any material issues of fact (see Brown v Outback Steakhouse, 39AD3d 450, 451 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337[1997]; Muscatello v City of New York, 215 AD2d 463, 464 [1995]).
Accordingly, the defendants failed to meet their initial burden of demonstrating entitlementto judgment as a matter of law on the cause of action based on lack of informed consent, andsummary judgment was unwarranted on that cause of action irrespective of the sufficiency of theplaintiff's submissions (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]; Rezvani v Somnay, 65 AD3d at 539; Colon v Klindt, 302 AD2d at 553).Rivera, J.P., Florio, Angiolillo and Belen, JJ., concur.