| Magel v John T. Mather Mem. Hosp. |
| 2012 NY Slip Op 03813 [95 AD3d 1081] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Joseph F. Magel et al., Respondents, v John T. MatherMemorial Hospital et al., Defendants, and James D. Sullivan III et al.,Appellants. |
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Halperin & Halperin, P.C., New York, N.Y. (Steven T. Halperin and James H. Irish ofcounsel), for respondents.
In an action to recover damages for medical malpractice, the defendants James D. Sullivan IIIand North Shore Surgical Oncology Associates, P.C., appeal, as limited by their brief, from somuch of an order of the Supreme Court, Nassau County (Mahon, J.), dated October 15, 2010, asgranted that branch of the plaintiffs' cross motion which was for summary judgment on the issueof liability on the cause of action asserted by the plaintiff Joseph F. Magel alleging malpracticebased on lack of informed consent.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiffs' cross motion which was for summary judgment on the issue of liabilityon the cause of action asserted by the plaintiff Joseph F. Magel alleging malpractice based onlack of informed consent is denied.
In August 2004 the defendant James D. Sullivan III, who at all relevant times was affiliatedwith the defendant North Shore Surgical Oncology Associates, P.C. (hereinafter together theappellants), performed a laparotomy on the plaintiff Joseph F. Magel (hereinafter Magel). In acomplaint against, among others, the appellants, Magel alleged that the laparotomy wasnegligently performed and that he did not give informed consent prior to undergoing theprocedure. Additionally, Magel's wife asserted a cause of action alleging loss of services.
After the appellants moved for summary judgment dismissing the complaint insofar asasserted against them, the plaintiffs cross-moved, inter alia, for summary judgment on the issueof liability on Magel's cause of action alleging malpractice based on lack of informed consent.The Supreme Court denied the appellants' motion, and granted that branch of the cross motionwhich was for summary judgment on the issue of liability on Magel's cause of action allegingmalpractice based on lack of informed consent.
"To establish a cause of action [to recover damages] for malpractice based on lack ofinformed consent, a plaintiff must prove (1) that the person providing the professional treatment[*2]failed to disclose alternatives thereto and failed to inform thepatient of reasonably foreseeable risks associated with the treatment, and the alternatives, that areasonable medical practitioner would have disclosed in the same circumstances, (2) that areasonably prudent patient in the same position would not have undergone the treatment if he orshe had been fully informed, and (3) that the lack of informed consent is a proximate cause of theinjury" (Spano v Bertocci, 299 AD2d 335, 337-338 [2002] [internal quotation marksomitted]; see Public Health Law § 2805-d [1]).
Here, relying on deposition testimony and his medical expert's opinion, Magel made a primafacie showing of entitlement to judgment as a matter of law on the issue of liability with respectto his cause of action alleging malpractice based on lack of informed consent (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). However, in opposition to the cross motion, theappellants presented an expert opinion that raised a triable issue of fact as to whether Magel gaveinformed consent when he agreed to undergo the laparotomy. Contrary to the Supreme Court'sdetermination, the appellants' expert's opinion was not conclusory and was adequately supportedby record evidence, including medical reports and deposition testimony.
"Summary judgment is not appropriate in a medical malpractice action where the partiesadduce conflicting medical expert opinions. Such credibility issues can only be resolved by ajury" (Bengston v Wang, 41 AD3d625, 626 [2007] [internal quotation marks omitted]; see Feinberg v Feit, 23 AD3d 517, 518-519 [2005]). Accordingly,under the circumstances, the Supreme Court erred in granting that branch of the plaintiffs' crossmotion which was for summary judgment on the issue of liability on Magel's cause of actionalleging malpractice based on the lack of informed consent.
We note that the plaintiffs' request for certain affirmative relief is not properly before thisCourt, since the plaintiffs did not cross-appeal (see Shkolnik v Krutoy, 65 AD3d 1214, 1216 [2009]; Viafax Corp. v Citicorp Leasing, Inc.,54 AD3d 846, 850 [2008]). Rivera, J.P., Dickerson, Chambers and Austin, JJ., concur.[Prior Case History: 2010 NY Slip Op 32990(U).]