| Gray v Williams |
| 2013 NY Slip Op 05140 [108 AD3d 1085] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| Evelyn M. Gray, Appellant, v Aston B. Williams, M.D.,Respondent. |
—[*1] Connors & Vilardo, LLP, Buffalo (John T. Loss of counsel), fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Erie County (John M. Curran, J.),entered July 30, 2012. The judgment, insofar as appealed from, granted that part of themotion of defendant for summary judgment dismissing plaintiff's third cause of action.
It is hereby ordered that the judgment insofar as appealed from is unanimouslyreversed on the law without costs, that part of defendant's motion for summary judgmentseeking dismissal of the third cause of action is denied and that cause of action isreinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries sheallegedly sustained as a result of a colonoscopy performed by defendant, during whichthe rectosigmoid junction of plaintiff's colon was perforated. The perforation was notimmediately noticed, and plaintiff underwent emergency surgery the next day to rectifythe resulting medical problems. Plaintiff subsequently asserted three causes of action, fornegligent performance of the colonoscopy, negligent post-procedure care, and lack ofinformed consent. Defendant moved for summary judgment dismissing the complaint,and Supreme Court granted that part of the motion with respect to the cause of action forlack of informed consent. Following a trial on the remaining causes of action, a juryfound no negligence on the part of defendant.
As a preliminary matter, we note that the order from which plaintiff appeals wassubsumed in the final judgment, from which no appeal was taken. In the exercise of ourdiscretion we treat the notice of appeal as valid and deem the appeal as taken from thejudgment (see Cowley v Kahn, 298 AD2d 917, 918 [2002]; Hughes vNussbaumer, Clarke & Velzy, 140 AD2d 988, 988 [1988]; see also CPLR5520 [c]).
We agree with plaintiff that the court erred in granting that part of defendant'smotion for summary judgment dismissing the cause of action for lack of informedconsent. "To succeed in a medical malpractice cause of action premised on lack ofinformed consent, a plaintiff must demonstrate that (1) the practitioner failed to disclosethe risks, benefits and alternatives to the procedure or treatment that a reasonablepractitioner would have disclosed and (2) a reasonable person in the plaintiff's position,fully informed, would have elected not to undergo the procedure or treatment" (Orphan v Pilnik, 15 NY3d907, 908 [2010]; see Public Health Law § 2805-d[*2][1], [3]). We conclude that defendant met his initial burdenof establishing his entitlement to judgment as a matter of law by submitting depositiontestimony, medical records, and an expert report, which demonstrated that he informedplaintiff of the risks associated with the procedure, as well as plaintiff's signed writtenconsent form, which confirmed her understanding of those risks (see PublicHealth Law § 2805-d [1]; Lynn G. v Hugo, 96 NY2d 306, 309 [2001]).We reject plaintiff's contention that defendant's submissions in support of his motionwere based solely upon habit evidence (see generally Rivera v Anilesh, 8 NY3d 627, 633-635[2007]). Contrary to plaintiff's further contention, we conclude that defendant'ssubmissions were sufficient to establish his entitlement to summary judgment inasmuchas they address each factual allegation contained in plaintiff's bill of particulars (cf. Payne v Buffalo Gen.Hosp., 96 AD3d 1628, 1630 [2012]).
We agree with plaintiff, however, that the court erred in concluding that she failed toraise a triable issue of fact on the ground that she did not submit an expert's affidavitestablishing that a reasonably prudent person in her position would have declined theprocedure planned and performed by defendant had she received a qualitatively sufficientexplanation of its risks. Contrary to the court's conclusion, expert testimony concerningwhat a reasonable person would have done in plaintiff's position is not necessary tomaintain a cause of action premised upon lack of informed consent (see Hugh v Ofodile, 87 AD3d508, 509 [2011]; Andersen v Delaney, 269 AD2d 193, 193 [2000]; seegenerally Public Health Law § 2805-d [3]). Here, we conclude that plaintiff'saffidavit addressing that element was sufficient to raise a triable issue of fact (see James v Greenberg, 57AD3d 849, 850 [2008]). We further conclude that the affidavit of plaintiff's expertwas sufficient to raise a triable issue of fact with respect to the qualitative insufficiencyof the consent (see Johnson vJacobowitz, 65 AD3d 610, 613-614 [2009], lv denied 14 NY3d 710[2010]; cf. Evans v Holleran, 198 AD2d 472, 474 [1993]). We therefore reversethe judgment insofar as appealed from and deny defendant's motion to the extent it seekssummary judgment dismissing the cause of action for lack of informed consent.
Finally, plaintiff's contention that the dismissal of the cause of action for lack ofinformed consent materially prejudiced her ability to try the remaining causes of action isnot properly before this Court inasmuch as she limited her notice of appeal to issuesrelated to the cause of action for lack of informed consent (see State Farm Mut. Auto. Ins.Cos. v Jaenecke, 81 AD3d 1474, 1474-1475 [2011], lv denied 17 NY3d701 [2011]). In any event, plaintiff failed to provide a transcript of the trial, thusrendering the record insufficient for this Court to determine that issue on the merits (see generally Mergl v Mergl,19 AD3d 1146, 1147 [2005]). Present—Centra, J.P., Fahey, Carni andSconiers, JJ.