| Ponholzer v Simmons |
| 2010 NY Slip Op 08155 [78 AD3d 1495] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| Donna Ponholzer et al., Respondents, v Edward D. Simmons, M.D., etal., Appellants. |
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Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered July 14,2009 in a medical malpractice action. The order, insofar as appealed from, denied the motion ofdefendants for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law by grantingthe motion in part and dismissing the second cause of action and as modified the order is affirmedwithout costs.
Memorandum: Plaintiffs commenced this medical malpractice action seeking damages for injuriessustained by Donna Ponholzer (plaintiff) when defendant Edward D. Simmons, M.D. allegedlyexceeded the scope of her consent to cervical fusion surgery by taking the bone graft necessary for thatsurgery from her hip rather than using donor bone from a cadaver. We conclude that Supreme Courtproperly denied that part of defendants' motion for summary judgment dismissing the medicalmalpractice cause of action. Defendants contend that the only cognizable claim alleged by plaintiffs isone for battery, which is time-barred inasmuch as the applicable statute of limitations is one year(see CPLR 215 [3]). We reject that contention. It is well settled that, "[w]hile lack of informedconsent is a proper element of a medical malpractice cause of action . . . , the failure toobtain such consent should not be used to elevate the cause of action to one for intentional tort"(Twitchell v MacKay, 78 AD2d 125, 129 [1980]). "The [physician] in a malpractice case isordinarily not an actor who intends to inflict an injury on his [or her] patient and any legal theory [that]presumes that intent appears to be based upon an erroneous supposition. Instead, the [physician] is notone who acts antisocially as one who commits assault and battery, but is an actor who in good faithintends to confer a benefit on the patient" (Dries v Gregor, 72 AD2d 231, 235 [1980]; seeTwitchell, 78 AD2d at 129-130). Defendants mistakenly rely on cases from the First and SecondDepartments in which the plaintiff patient alleged that the defendant physician knew that he or she wasexceeding the scope of the plaintiff's consent by performing a medical procedure that the plaintiff hadnot authorized (see Wiesenthal vWeinberg, 17 AD3d 270 [2005]; Cerilli v Kezis, 16 AD3d 363 [2005]; Cross v Colen, 6 AD3d 306 [2004];Messina v Alan [*2]Matarasso, M.D., F.A.C.S., P.C., 284AD2d 32, 34-35 [2001]). Here, plaintiffs allege in the complaint, as amplified by the bill of particulars,that Simmons negligently exceeded the scope of plaintiff's consent when the bone graft was harvestedfrom plaintiff's hip.
We further conclude, however, that the court erred in denying that part of defendants' motion forsummary judgment dismissing the cause of action for lack of informed consent pursuant to Public HealthLaw § 2805-d. The record establishes that plaintiff was adequately informed of the risks andbenefits of the various surgical options and that defendants did not fail to convey certain information toplaintiff concerning the surgery (see generally Spano v Bertocci, 299 AD2d 335, 337-338[2002]). We therefore modify the order accordingly. Present—Scudder, P.J., Centra,Peradotto, Sconiers and Pine, JJ.