| Johnson v Staten Is. Med. Group |
| 2011 NY Slip Op 01618 [82 AD3d 708] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Yamda Johnson, Appellant, v Staten Island Medical Groupet al., Respondents, et al., Defendant. |
—[*1] Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell ofcounsel), for respondents Staten Island Medical Group and Lance Jung.
In an action to recover damages for medical malpractice and lack of informed consent theplaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court,Richmond County (McMahon, J.), dated December 17, 2009, as, upon reargument, in effect,vacated a prior determination in an order of the same court dated July 24, 2009, denying thatbranch of the motion of the defendants Staten Island Medical Group, Lance Jung, and NicoleBorger which was for summary judgment dismissing the cause of action based upon an allegedlack of informed consent insofar as asserted against the defendant Lance Jung, and thereupongranted that branch of the motion.
Ordered that the order dated December 17, 2009, is affirmed insofar as appealed from, withcosts to the defendants Staten Island Medical Group and Lance Jung.
Public Health Law § 2805-d (1) defines lack of informed consent as "the failure of theperson providing the professional treatment . . . to disclose to the patient suchalternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonablemedical, dental or podiatric practitioner under similar circumstances would have disclosed, in amanner permitting the patient to make a knowledgeable evaluation." To establish a cause ofaction sounding in lack of informed consent, a plaintiff must establish that "a reasonably prudentperson in the patient's position would not have undergone the treatment . . . if he [orshe] had been fully informed and that the lack of informed consent is a proximate cause of theinjury or condition for which recovery is sought" (Public Health Law § 2805-d [3]; see Thompson v Orner, 36 AD3d791 [2007]; Manning v BrookhavenMem. Hosp. Med. Ctr., 11 AD3d 518 [2004]).
Here, the defendants Staten Island Medical Group, Lance Jung, and Nicole Borger(hereinafter collectively the defendants) established their prima facie entitlement to judgment as amatter of law dismissing the cause of action based upon an alleged lack of informed consentinsofar as asserted against the defendant Lance Jung by demonstrating that the plaintiff signed aconsent form which stated, inter alia, that she had been informed about the proposed surgicalprocedure, and the alternatives thereto, as well as the reasonably foreseeable risks and benefits. Inaddition, Jung [*2]testified at his deposition that he informed theplaintiff regarding these issues during a preoperative discussion with her (see Ortaglia v Scanlon, 35 AD3d421 [2006]; Ericson vPalleschi, 23 AD3d 608 [2005]). Furthermore, the defendants demonstrated that, in anyevent, a reasonably prudent person in the plaintiff's position would not have declined to undergothe surgery (see Public Health Law § 2805-d [3]; Thompson v Orner, 36 AD3d 791[2007]; Agnese v Cattani, 291 AD2d 515 [2002]; Hylick v Halweil, 112 AD2d400, 401 [1985]), and that any lack of informed consent did not proximately cause any injury (see Trabal v Queens Surgi-Center, 8AD3d 555 [2004]; Mondo v Ellstein, 302 AD2d 437 [2003]; Bernard vBlock, 176 AD2d 843 [1991]; Flores v Flushing Hosp. & Med. Ctr., 109 AD2d 198[1985]). In response to these showings, the plaintiff failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Accordingly, the Supreme Court properly, upon reargument, granted that branch of thedefendants' motion which was for summary judgment dismissing the cause of action based uponan alleged lack of informed consent insofar as asserted against Jung (see Ortaglia v Scanlon, 35 AD3d421 [2006]; Agnese v Cattani, 291 AD2d at 516; see generally Alvarez vProspect Hosp., 68 NY2d 320 [1986]). Mastro, J.P., Skelos, Eng and Sgroi, JJ., concur.