| Walker v Saint Vincent Catholic Med. Ctrs. |
| 2014 NY Slip Op 00653 [114 AD3d 669] |
| February 5, 2014 |
| Appellate Division, Second Department |
| James Michael Walker, Appellant, v Saint VincentCatholic Medical Centers, Defendant, and Noel E. Blackman,Respondent. |
—[*1] Bartlett McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G. Vizza andDeborah A. Dyckman of counsel), for respondent.
In an action to recover damages for medical malpractice and for lack of informedconsent, the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Queens County (O'Donoghue, J.), entered March 19, 2010, as grantedthe cross motion of the defendant Noel E. Blackman for summary judgment dismissingthe complaint insofar as asserted against him.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the cross motion of the defendant Noel E. Blackman which wasfor summary judgment dismissing the second cause of action insofar as asserted againsthim, and substituting therefor a provision denying that branch of the cross motion; as somodified, the order is affirmed insofar as appealed from, with costs to the plaintiff.
The defendant Noel E. Blackman met his prima facie burden of establishing hisentitlement to judgment as a matter of law dismissing the cause of action to recoverdamages for medical malpractice insofar as asserted against him by submitting theaffidavit of his expert, which demonstrated that surgery performed upon the plaintiff wasundertaken in accordance with good and accepted standards of medical practice (see Poter v Adams, 104 AD3d925, 926 [2013]; Olgun vCipolla, 82 AD3d 1186, 1187 [2011]; Smith-Johnson v Gabbur, 65 AD3d 1122, 1124 [2009]; Dandrea v Hertz, 23 AD3d332 [2005]). In opposition, the plaintiff failed to raise a triable issue of fact. Theaffidavit of his expert was conclusory and unsupported by competent evidence tending toestablish the essential elements of medical malpractice and, thus, was insufficient todefeat summary judgment (seeHeller v Weinberg, 77 AD3d 622, 623 [2010]; Shectman v Wilson, 68 AD3d848, 849 [2009]; Sheenan-Conrades v Winifred Masterson Burke RehabilitationHosp., 51 AD3d 769, 770 [2008]).
However, "lack of informed consent is a distinct cause of action requiring proof offacts not contemplated by an action based merely on allegations of negligence" (Jollyv Russell, 203 AD2d 527, 528 [1994]). A cause of action premised on a lack ofinformed consent "is meant to redress a 'failure of the person providing the professionaltreatment or diagnosis to disclose to the patient such alternatives thereto and thereasonably foreseeable risks and benefits involved as a reasonable [*2]medical . . . practitioner under similarcircumstances would have disclosed, in a manner permitting the patient to make aknowledgeable evaluation' " (Karlin v IVF Am., 93 NY2d 282, 292 [1999],quoting Public Health Law § 2805-d [1]). Thus, "[t]o establish a cause of action[to recover damages] for malpractice based on lack of informed consent, [a] plaintiffmust prove (1) that the person providing the professional treatment failed to disclosealternatives thereto and failed to inform the patient of reasonably foreseeable risksassociated with the treatment, and the alternatives, that a reasonable medical practitionerwould have disclosed in the same circumstances, (2) that a reasonably prudent patient inthe same position would not have undergone the treatment if he or she had been fullyinformed, and (3) that the lack of informed consent is a proximate cause of the injury"(Spano v Bertocci, 299 AD2d 335, 337-338 [2002] [internal quotation marksomitted]; see Khosrova vWestermann, 109 AD3d 965, 966 [2013]).
Here, Blackman failed to submit proof sufficient to establish his prima facieentitlement to judgment as a matter of law dismissing the second cause of action, whichsought damages for medical malpractice premised on lack of informed consent, insofaras asserted against him. Contrary to Blackman's contentions, the fact that the plaintiffsigned a consent form does not establish Blackman's entitlement to judgment as a matterof law (see Kozlowski vOana, 102 AD3d 751, 753 [2013]; Wilson-Toby v Bushkin, 72 AD3d 810, 811 [2010]; Rezvani v Somnay, 65 AD3d537, 538-539 [2009]). The consent form signed by the plaintiff was generic, andaside from a handwritten notation that the plaintiff was consenting to "right inguinalhernia repair," it did not contain any details about the operation. The form did notdisclose the risks specific to the hernia repair operation, or alternatives to that operation(see Kozlowski v Oana, 102 AD3d at 753). Furthermore, the affidavit ofBlackman's expert made only conclusory averments that Blackman met the standard ofcare in obtaining the plaintiff's informed consent, "in that risks and benefits werediscussed and a consent form was signed." The expert failed to aver that the consent formcomplied with the prevailing standard for such disclosures applicable to reasonablepractitioners performing the same kind of surgery. Still further, Blackman failed toestablish that a reasonably prudent person in the plaintiff's position would not havedeclined to undergo the procedure if he or she had been fully informed (see Muniz v Katlowitz, 49AD3d 511, 513 [2008]; Haggerty v Wyeth Ayerst Pharms., 11 AD3d 511, 512-513[2004]; Baez v Lockridge, 259 AD2d 573 [1999]).
Since Blackman failed to establish his prima facie entitlement to judgment as amatter of law, that branch of his cross motion which was for summary judgmentdismissing the second cause of action insofar as asserted against him should have beendenied, regardless of the sufficiency of the plaintiff's opposing papers (see Winegradv New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Kozlowski v Oana,102 AD3d at 753). Mastro, J.P., Rivera, Sgroi and Cohen, JJ., concur.