| Thaw v North Shore Univ. Hosp. |
| 2015 NY Slip Op 05173 [129 AD3d 937] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| Sandra Thaw, Appellant, v North ShoreUniversity Hospital et al., Respondents, et al., Defendant. |
Parker Waichman LLP, Port Washington, N.Y. (Jay L. T. Breakstone and Brett A.Zekowski of counsel), for appellant.
Martin Clearwater & Bell LLP, New York, N.Y. (Arjay G. Yao and Rosaleen T.McCrory of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, assault andbattery, and lack of informed consent, the plaintiff appeals, as limited by her brief, fromso much of an order of the Supreme Court, Queens County (O'Donoghue, J.), enteredAugust 10, 2012, as granted those branches of the motion of the defendants North ShoreUniversity Hospital, North Shore Women's Health, and Teresa Lazar which werepursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging assault and batteryand for summary judgment dismissing the cause of action alleging lack of informedconsent.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the motion of the defendants North Shore University Hospital,North Shore Women's Health, and Teresa Lazar which was for summary judgmentdismissing the cause of action alleging lack of informed consent, and substitutingtherefor a provision denying that branch of the motion; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
The plaintiff, who was a patient of the defendant Teresa Lazar, a physician employedby the defendants North Shore University Hospital and North Shore Women's Health(hereinafter collectively the defendants), alleges that on April 27, 2007, Lazar performedan unauthorized hysterectomy upon her, constituting assault and battery. The plaintiffalso asserts causes of action based on, inter alia, lack of informed consent and medicalmalpractice.
In 2007, after an MRI examination indicated "a pelvic mass," and "concern formalignancy," the plaintiff consented to the performance of a laparoscopic procedure,rather than a hysterectomy. However, according to Lazar, the plaintiff "agreed to thepossibility of a hysterectomy." Before the operation, the plaintiff signed a consent form,which stated that she was consenting to "[o]perative laparoscopy . . .Possible exploratory laparotomy. Total abdominal hysterectomy. PAP smear. Possiblestaging . . . Removal of diseased tissue." According to Lazar, the decision toperform the hysterectomy was made during the operation, because the pelvic mass wasvery large, was atypical in appearance, and "appear[ed] diseased." The plaintiff testifiedat her [*2]deposition that she signed the consent form,but claimed she had no opportunity to read it, was bullied into doing so, and was underthe influence of anesthesia when she signed it.
In the order appealed from, the Supreme Court granted those branches of thedefendants' motion which were to dismiss the assault and battery cause of action pursuantto CPLR 3211 (a) (7) for failure to state a cause of action, and for summary judgmentdismissing the cause of action alleging lack of informed consent.
"When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), thestandard is whether the pleading states a cause of action, not whether the proponent ofthe pleading has a cause of action. In considering such a motion, the court must acceptthe facts as alleged in the complaint as true, accord plaintiffs the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory . . . If the court considers evidentiary material, thecriterion then becomes whether the proponent of the pleading has a cause of action, notwhether he has stated one . . . [The motion] must be denied unless it hasbeen shown that a material fact as claimed by the pleader to be one is not a fact at all andunless it can be said that no significant dispute exists regarding it" (Bokhour v GTI Retail Holdings,Inc., 94 AD3d 682, 682-683 [2012] [citations and internal quotation marksomitted]).
"To plead a cause of action to recover damages for assault, a plaintiff must allegeintentional 'physical conduct placing the plaintiff in imminent apprehension of harmfulcontact' " (Gould vRempel, 99 AD3d 759, 760 [2012], quoting Bastein v Sotto, 299 AD2d432, 433 [2002]; see Cotter vSummit Sec. Servs., Inc., 14 AD3d 475, 475-476 [2005]). "To recover damagesfor battery, a plaintiff must prove that there was bodily contact, made with intent, andoffensive in nature" (Cotter v Summit Sec. Servs., Inc., 14 AD3d at 475-476).Here, the evidence in the record upon which the Supreme Court relied established that "amaterial fact as claimed by the plaintiff" was "not a fact at all" (Agai v Liberty Mut. AgencyCorp., 118 AD3d 830, 832 [2014]). Notwithstanding the plaintiff's allegationsand testimony that she never gave permission for the performance of ahysterectomy, the signed consent form clearly authorized such a procedure, and sheadmitted that she signed the consent form. Therefore, dismissal of the assault and batterycause of action was proper (seePonholzer v Simmons, 78 AD3d 1495 [2010]; Salandy v Bryk, 55 AD3d147, 152 [2008]; cf. Cerilli v Kezis, 306 AD2d 430 [2003]).
"To succeed in a medical malpractice cause of action premised on lack of informedconsent, a plaintiff must demonstrate that (1) the practitioner failed to disclose the risks,benefits and alternatives to the procedure or treatment that a reasonable practitionerwould have disclosed and (2) a reasonable person in the plaintiff's position, fullyinformed, would have elected not to undergo the procedure or treatment (seePublic Health Law § 2805-d [1], [3])" (Orphan v Pilnik, 15 NY3d 907, 908 [2010]). Here theplaintiff's deposition testimony indicates that she was not fully advised of the risks,benefits, and alternatives to the procedure or treatment, including the fact that one of therisks was a total hysterectomy and/or perforation of the bowel, nor was it established as amatter of law that if the plaintiff received full disclosure, she still would have consentedto the procedure. Since the defendants' submissions included the plaintiff's depositiontestimony, they failed to establish, prima facie, that there were no triable issues of factwith respect to the cause of action alleging lack of informed consent (see Orphan vPilnik, 15 NY3d at 908-909; Rivera v Albany Med. Ctr. Hosp., 119 AD3d 1135, 1138[2014]). Accordingly, the Supreme Court should have denied that branch of thedefendants' motion which was for summary judgment dismissing the cause of actionalleging lack of informed consent. Roman, Miller and Hinds-Radix, JJ., concur.
Skelos, J.P., concurs in part and dissents in part, and votes to reverse the order, onthe law, and deny those branches of the defendants' motion which were pursuant toCPLR 3211 (a) (7) to dismiss the cause of action alleging, in effect, battery and forsummary judgment dismissing the cause of action alleging lack of informed consent withthe following memorandum, in which LaSalle, J., concurs: The plaintiff alleged in herpleadings that, during a surgical procedure to which she [*3]had consented, the defendant Theresa Lazar, a physicianemployed by the defendant North Shore University Hospital, also performed a totalabdominal hysterectomy on her "without her consent and against her specificinstructions." Based upon this allegation, the plaintiff asserted a cause of action torecover damages for, in effect, battery. The plaintiff also asserted a cause of actionalleging lack of informed consent.
The defendants Lazar, North Shore University Hospital, and North Shore Women'sHealth (hereinafter collectively the defendants) moved for summary judgment dismissingthe lack of informed consent cause of action, and also moved, pursuant to CPLR 3211 (a)(7), to dismiss the battery claim for failure to state a cause of action. In support of thelatter branch of their motion, the defendants, while acknowledging that, on multipleoccasions during the course of treatment, the plaintiff had expressed that she did not wishto undergo a total abdominal hysterectomy, relied upon a consent form signed by theplaintiff, which acknowledged the possibility that she might undergo a total abdominalhysterectomy. According to the plaintiff, the form was presented to her urgently,immediately before surgery, while she was in the operating room and without her glasses,she was told to sign it, and she did so without reading it. The Supreme Court granted thedefendants' motion.
The majority correctly concludes that the defendants were not entitled to summaryjudgment dismissing the lack of informed consent cause of action. However, they affirmthe granting of the branch of the defendants' motion which was to dismiss the batteryclaim for failure to state a cause of action, concluding that the defendants demonstrated,solely by virtue of the plaintiff's signature on the consent form, that the plaintiff's factualallegation that the defendants performed a total abdominal hysterectomy without herconsent is "not a fact at all" (Guggenheimer v Ginzburg, 43 NY2d 268, 275[1977]). In light of the surrounding circumstances, including those under which theplaintiff claims the consent form was signed, I cannot agree with that conclusion.Therefore, I concur in part and dissent in part.
The plaintiff began seeing Lazar in September 2004, in connection with a massdetected on a pelvic ultrasound. After obtaining further diagnostic studies, which werenot definitive, Lazar, in 2005, offered the plaintiff several treatment options, including atotal abdominal hysterectomy (hereinafter a hysterectomy). The plaintiff advised Lazarthat she did not want to undergo surgery. The plaintiff returned to Lazar in 2007, afterreceiving diagnostic test results that raised a concern that the plaintiff's pelvic mass mightbe malignant. Lazar recommended that the plaintiff undergo, among other things, ahysterectomy, and the plaintiff expressly rejected that recommendation. Thereafter, it wasdecided that the plaintiff would undergo a certain laparoscopic procedure.
Lazar testified at a deposition that, although the plaintiff continuously maintainedthat she did not want a hysterectomy, the plaintiff understood and agreed that thisprocedure might be performed if, in the course of performing the laparoscopic procedure,a malignancy was suspected. In contrast, the plaintiff testified at her deposition that shewas adamant throughout her course of treatment with Lazar that she did not want ahysterectomy and that Lazar never discussed with her the possibility that the laparoscopicprocedure might be converted to an open procedure, including a hysterectomy.
It is undisputed that, on the day of her surgery, the plaintiff signed a consent form,authorizing the laparoscopic procedure and a possible hysterectomy. According to theplaintiff, she was lying in the operating room, the procedure was about to start, andanesthesia may or may not have been started when a nurse "came running in" with theconsent form. The plaintiff testified that Lazar "yelled" at other staff in the room,questioning why the consent form had not been signed earlier. The plaintiff asserted thatshe did not have her glasses, that she did not and could not read the form, and that Lazardid not discuss it with her. Rather, according to the plaintiff, Lazar told her to sign theform and stated that she had no choice because she might have cancer.
Lazar disputed this version of events, testifying that the consent form was signedbefore the plaintiff was taken into the operating room, and that she explained the form tothe plaintiff. Lazar thereafter began the laparoscopic procedure and determined,intraoperatively, to convert the laparoscopic procedure to an open procedure and toperform a hysterectomy.
[*4] The plaintiffsubsequently commenced this action, inter alia, to recover damages for, in effect, battery,claiming that the hysterectomy was performed without her consent and against herinstructions. The Supreme Court granted that branch of the defendants' motion whichwas to dismiss that cause of action pursuant to CPLR 3211 (a) (7) for failure to state acause of action.
In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) forfailure to state a cause of action, a court must "accept the facts as alleged in the complaintas true, accord [the] plaintiff[ ] the benefit of every possible favorable inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory"(Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Nonnon v City of NewYork, 9 NY3d 825, 827 [2007]). "Initially, the sole criterion is whether thepleading," on its face, "states a cause of action" (Guggenheimer v Ginzburg, 43NY2d 268, 275 [1977]; seeSokol v Leader, 74 AD3d 1180, 1180-1181 [2010]).
Any party is permitted, however, to submit evidentiary material in connection with amotion pursuant to CPLR 3211 (a) (7) (see CPLR 3211 [c]; Rovello vOrofino Realty Co., 40 NY2d 633, 635 [1976]). A plaintiff may submit affidavits "topreserve inartfully pleaded, but potentially meritorious, claims" (Rovello v OrofinoRealty Co., 40 NY2d at 635). Nevertheless, unless the motion is converted into onefor summary judgment pursuant to CPLR 3211 (c), a plaintiff "will not be penalizedbecause he [or she] has not made an evidentiary showing in support of his [or her]complaint" (id.; see Sokol v Leader, 74 AD3d at 1181).
Evidence submitted by a defendant "will almost never warrant dismissal under CPLR3211 unless [it] 'establish[es] conclusively that [the plaintiff] has no . . .cause of action' " (Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008][emphasis omitted], quoting Rovello v Orofino Realty Co., 40 NY2d at 636).This inquiry is, of course, distinct from that applicable to a motion for summaryjudgment, in which the movant, initially, only needs to "make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to demonstratethe absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]; see Nonnon v City of New York, 9 NY3d at 827). To obtainrelief on a motion to dismiss pursuant to CPLR 3211 (a) (7), in which no burden-shiftingregime is employed, the defendant must establish "that a material fact as claimed by thepleader to be one is not a fact at all" and that "no significant dispute exists regarding it"(Guggenheimer v Ginzburg, 43 NY2d at 275). In other words, to grant a motionpursuant to CPLR 3211 (a) (7), a court must determine that "the essential facts" havebeen "negated beyond substantial question" (id. at 275). " 'Whether aplaintiff can ultimately establish [his or her] allegations' " is, of course," 'not part of the calculus' " (Sokol v Leader, 74 AD3d at 1181,quoting EBC I, Inc. v Goldman,Sachs & Co., 5 NY3d 11, 19 [2005]).
"The elements of battery are bodily contact, made with intent, and offensive innature" (Cerilli v Kezis, 16AD3d 363, 364 [2005]; seeSiegell v Herricks Union Free School Dist., 7 AD3d 607, 609 [2004]). "Theintent required for battery is 'intent to cause a bodily contact that a reasonable personwould find offensive' " (Cerilli v Kezis, 16 AD3d at 364, quoting Jeffreys v Griffin, 1 NY3d34, 41 n 2 [2003]). Recognizing that "[e]very human being of adult years and soundmind has a right to determine what shall be done with his [or her] own body"(Schloendorff v Society of N.Y. Hosp., 211 NY 125, 129-130 [1914]; seeLaskowitz v CIBA Vision Corp., 215 AD2d 25, 27 [1995]), the courts haveacknowledged that a doctor who performs a medical procedure on a patient without anyconsent, in the absence of an emergency, is liable for battery (see VanBrocklen v Erie CountyMed. Ctr., 96 AD3d 1394 [2012]; Cerilli v Kezis, 16 AD3d at 363-364;Laskowitz v CIBA Vision Corp., 215 AD2d at 28; Rigie v Goldman, 148AD2d 23, 28 [1989]; Oates v New York Hosp., 131 AD2d 368, 369 [1987]).
Here, the plaintiff alleged in her complaint, as amplified by her bill of particulars (see Gale v Animal Med. Ctr.,108 AD3d 497, 499 [2013]), that Lazar performed a hysterectomy on her withoutany consent and against her express instructions. Such allegations clearly state a cause ofaction sounding in battery (seeBerrios v Our Lady of Mercy Med. Ctr., 20 AD3d 361, 362 [2005]; Cerilli vKezis, 16 AD3d at 363; Oates v New York Hosp., 131 AD2d at 369; seealso Laskowitz v CIBA Vision Corp., 215 AD2d at 28; Rigie v Goldman,148 AD2d at 28).
The majority concludes, however, that the consent form signed by the plaintiff [*5]demonstrates that the plaintiff's allegation that thehysterectomy was performed without her consent and against her express instructionswas not a fact at all. The majority determines, essentially, that the plaintiff has stated nomore than a cause of action sounding in lack of informed consent.
"[C]ases where a procedure is completely unauthorized . . . must bedistinguished from cases where a patient consents to a procedure without being fullyaware of the risks and consequences involved" (Messina v Alan Matarasso, M.D.,F.A.C.S., P.C., 284 AD2d 32, 35 [2001] [internal quotation marks omitted]). While abattery cause of action is properly maintained under the former circumstances, "thefailure of a doctor to properly inform his patient of the risks of an operation is. . . a species of malpractice based upon negligence" (Rigie vGoldman, 148 AD2d at 28-29; see Messina v Alan Matarasso, M.D., F.A.C.S.,P.C., 284 AD2d at 34).
In the present case, the plaintiff alleged that she was urgently presented with aconsent form while lying down in the operating room without her glasses and had noopportunity to read it. She further alleged, and indeed, it is undisputed, that on multipleoccasions she expressly rejected Lazar's recommendation that she have a hysterectomy.Assuming the truth of these allegations, it cannot be said that the plaintiff's meresignature on the consent form "negates beyond substantial question" her allegation thatshe did not authorize Lazar to perform a hysterectomy on her and that Lazar, knowingthe circumstances under which the consent was signed, did not intentionally perform thatprocedure on the plaintiff against her express wishes (Guggenheimer v Ginzburg,43 NY2d at 275).
In other words, assuming the truth of the plaintiff's allegations as to thecircumstances under which the consent form was signed, particularly when coupled withher undisputed steadfast refusal to have a hysterectomy, the plaintiff has stated a cause ofaction for battery on the theory that the consent form amounted to no consent at all.Moreover, the defendants have not conclusively established that this is a case in which, atmost, Lazar merely failed to inform the plaintiff that a hysterectomy was a risk orpotential consequence of the laparoscopic procedure to which she agreed. Rather,assuming the truth of the plaintiff's allegation that she expressly refused to consent to ahysterectomy, including in connection with the laparoscopic procedure, Lazar would bechargeable not with merely failing to alert the plaintiff to a potential consequence of thelaparoscopic procedure, but with "intention[ally] deviat[ing] from the consent given"(Messina v Alan Matarasso, M.D., F.A.C.S., P.C., 284 AD2d at 34; see Oatesv New York Hosp., 131 AD2d at 369 ["In contrast to a situation where a patientconsents to a medical procedure without being fully aware of the risks and consequencesinvolved, the instant case concerns a physician who performed an operation on a patientalthough the patient emphatically refused to consent to such operation"]). (Of course,nothing prevents the plaintiff from pleading, in the alternative, a cause of action alleginglack of informed consent [see CPLR 3014].)
Accordingly, since the consent form upon which the defendants relied did notestablish conclusively that the plaintiff has no cause of action to recover damages forbattery, that branch of the defendants' motion which was to dismiss that cause of actionpursuant to CPLR 3211 (a) (7) should have been denied (see generally Lawrence vGraubard Miller, 11 NY3d at 595; Rovello v Orofino Realty Co., 40 NY2d at636). I would, therefore, reverse the order insofar as appealed from and deny thosebranches of the defendants' motion which were for summary judgment dismissing thecause of action alleging a lack of informed consent, and to dismiss, pursuant to CPLR3211 (a) (7), the cause of action alleging, in effect, battery.