| Tsimbler v Fell |
| 2014 NY Slip Op 08982 [123 AD3d 1009] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| Yosif Tsimbler, Appellant, v Millie R. Fell,M.D., et al., Respondents, et al., Defendant. |
Garry Pogil, New York, N.Y., for appellant.
Peter C. Kopff, LLC (Mauro Lilling Naparty, LLP, Woodbury, N.Y. [Gregory A.Cascino and Caryn L. Lilling], of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice and lack ofinformed consent, the plaintiff appeals from an order of the Supreme Court, KingsCounty (Bunyan, J.), dated December 20, 2013, which granted that branch of the motionof the defendants Millie R. Fell and Raymond Reich which was for summary judgmentdismissing the complaint insofar as asserted against them, and denied his cross motion todismiss their affirmative defense alleging that the action was time-barred.
Ordered that the order is affirmed, with costs.
The defendants Millie R. Fell and Raymond Reich (hereinafter together the physiciandefendants) established their prima facie entitlement to judgment as a matter of lawdismissing the cause of action alleging medical malpractice by submitting the affidavit oftheir expert, which demonstrated that their diagnosis and treatment of the plaintiff'sopen-angle glaucoma was in accordance with good and accepted standards of medicalpractice (see Poter v Adams,104 AD3d 925, 926 [2013]; Olgun v Cipolla, 82 AD3d 1186, 1187 [2011]; Smith-Johnson v Gabbur, 65AD3d 1122, 1124 [2009]; Dandrea v Hertz, 23 AD3d 332 [2005]). In opposition, theplaintiff submitted the affidavit of a physician specializing in the field of internalmedicine, which did not state whether the physician had any specific training or expertisein ophthalmology, or particularized knowledge as to the treatment of glaucoma.Moreover, the affidavit did not indicate that the physician had familiarized himself withthe relevant literature or otherwise set forth how he was, or became, familiar with theapplicable standards of care in this specialized area of practice. " 'While it is truethat a medical expert need not be a specialist in a particular field in order to testifyregarding accepted practices in that field . . . the witness nonetheless shouldbe possessed of the requisite skill, training, education, knowledge or experience fromwhich it can be assumed that the opinion rendered is reliable' " (Behar v Coren, 21 AD3d1045, 1046-1047 [2005], quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892,895 [2004]; see Shectman vWilson, 68 AD3d 848, 849 [2009]). Thus, where a physician opines outside ofhis or her area of specialization, a foundation must be laid tending to support thereliability of the opinion rendered (see Shectman v Wilson, 68 AD3d at 850; Geffner v North Shore Univ.Hosp., 57 AD3d 839 [2008]; Bjorke v Rubenstein, 53 AD3d 519, 520 [2008]; Glazer v Choong-Hee Lee, 51AD3d 970, 971 [2008]; Mustello v Berg, 44 AD3d 1018, 1019 [2007]; Behar vCoren, 21 AD3d at 1046-1047). Under the circumstances of this case, the plaintiff'sexpert failed to lay the requisite foundation for his asserted familiarity with [*2]ophthalmology and, thus, his affidavit was of no probativevalue. Accordingly, the plaintiff failed to raise a triable issue of fact, and the SupremeCourt properly granted that branch of the physician defendants' motion which was forsummary judgment dismissing the cause of action alleging medical malpractice insofar asasserted against them.
"[L]ack of informed consent is a distinct cause of action requiring proof of facts notcontemplated by an action based merely on allegations of negligence" (Jolly vRussell, 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 medical. . . practitioner under similar circumstances would have disclosed, in amanner permitting the patient to make a knowledgeable evaluation' " (Karlinv IVF Am., 93 NY2d 282, 292 [1999], quoting Public Health Law§ 2805-d [1]). Thus, to establish a cause of action to recover damages formalpractice based on lack of informed consent, a plaintiff must prove "(1) that the personproviding the professional treatment failed to disclose alternatives thereto and failed toinform the patient of reasonably foreseeable risks associated with the treatment, and thealternatives, that a reasonable medical practitioner would have disclosed in the samecircumstances, (2) that a reasonably prudent patient in the same position would not haveundergone the treatment if he or she had been fully informed, and (3) that the lack ofinformed consent is a proximate cause of the injury" (Spano v Bertocci, 299AD2d 335, 337-338 [2002] [citation and internal quotation marks omitted]; see Khosrova v Westermann,109 AD3d 965, 966 [2013]).
Here, the physician defendants failed to submit proof sufficient to establish, primafacie, that they had informed the plaintiff of the reasonably foreseeable risks associatedwith the treatment, and, in any event, that a reasonably prudent patient in the sameposition would have undergone the treatment if he or she had been fully informed.However, the physician defendants established, prima facie, that the lack of informedconsent was not the proximate cause of the plaintiff's injury by submitting the affidavit oftheir expert, who opined that the physician defendants' treatment of the plaintiff was notresponsible for his injuries. In opposition, the plaintiff failed to raise a triable issue offact. Accordingly, the Supreme Court properly granted that branch of the physiciandefendants' motion which was for summary judgment dismissing the cause of actionalleging lack of informed consent insofar as asserted against them.
The plaintiff's remaining contentions either are without merit or need not be reachedin light of our determination. Mastro, J.P., Roman, Sgroi and Maltese, JJ., concur.