| Figueroa-Burgos v Bieniewicz |
| 2016 NY Slip Op 00329 [135 AD3d 810] |
| January 20, 2016 |
| Appellate Division, Second Department |
[*1]
| Lydia Figueroa-Burgos et al.,Appellants, v Edward J. Bieniewicz, Respondent, et al.,Defendants. |
Asher & Associates, P.C., New York, NY (Robert J. Poblete of counsel), forappellants.
Keller, O'Reilly & Watson, P.C., Woodbury, NY (Patrick J. Engle and VincentPetrozzo of counsel), for respondent.
In an action to recover damages for medical malpractice and lack of informedconsent, etc., the plaintiffs appeal (1) from an order of the Supreme Court, SuffolkCounty (LaSalle, J.), dated January 2, 2014, which denied their motion pursuant to CPLR4404 (a) to set aside so much of the jury verdict as, upon finding that the defendantEdward J. Bieniewicz departed from good and accepted medical practice by failing toobtain informed consent from the plaintiff Lydia Figueroa-Burgos prior to treatment,found that such departure was not a substantial factor in causing injury to the plaintiffLydia Figueroa-Burgos, and for judgment as a matter of law on the issue of liability onthe cause of action alleging lack of informed consent or, in the alternative, to set asidethat portion of the jury verdict as against the weight of the evidence and for a new trialon the cause of action alleging lack of informed consent, and (2), as limited by theirbrief, from so much of a judgment of the same court entered February 27, 2014, as, uponthe jury verdict, and upon the order dated January 2, 2014, is in favor of the defendantEdward J. Bieniewicz and against them dismissing the cause of action alleging lack ofinformed consent.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the facts and inthe exercise of discretion, so much of the judgment as is in favor of the defendantEdward J. Bieniewicz and against the plaintiffs dismissing the cause of action alleginglack of informed consent is vacated, and the matter is remitted to the Supreme Court,Suffolk County, for a new trial on the cause of action alleging lack of informed consentinsofar as asserted against the defendant Edward J. Bieniewicz; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
[*2] Thedefendant Edward J. Bieniewicz (hereinafter the defendant) performed a breast reductionsurgery on the plaintiff Lydia Figueroa-Burgos (hereinafter the plaintiff). The plaintiffand her husband, suing derivatively, commenced this action to recover damages for, interalia, lack of informed consent. After a trial, the jury rendered a verdict, among otherthings, finding that the defendant departed from good and accepted medical practice byfailing to provide appropriate information to the plaintiff prior to performing the surgery,but this departure was not a substantial factor in causing injury to the plaintiff. TheSupreme Court denied the plaintiffs' motion pursuant to CPLR 4404 (a) to set aside thatportion of the verdict and for judgment as a matter of law on the issue of liability on thelack of informed consent cause of action or, in the alternative, to set aside that portion ofthe verdict as contrary to the weight of the evidence and for a new trial on the lack ofinformed consent cause of action.
We agree with the plaintiffs that they are entitled to a new trial on the lack ofinformed consent cause of action due to errors in the Supreme Court's jury charge andverdict sheet. "[L]ack 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]). To establish a cause of action to recoverdamages for malpractice based on lack of informed consent, a plaintiff must prove "(1)that the person providing the professional treatment failed to disclose alternatives theretoand failed to inform the patient of reasonably foreseeable risks associated with thetreatment, and the alternatives, that a reasonable medical practitioner would havedisclosed in the same circumstances, (2) that a reasonably prudent patient in the sameposition would not have undergone the treatment if he or she had been fully informed,and (3) that the lack of informed consent is a proximate cause of the injury" (Spano vBertocci, 299 AD2d 335, 337-338 [2002] [internal quotation marks omitted];see Public Health Law § 2805-d [1], [3]; Chan v Toothsavers Dental Care,Inc., 125 AD3d 712, 713-714 [2015]; Trabal v Queens Surgi-Center, 8 AD3d 555, 556-557[2004]). "The third element is construed to mean that the actual procedure performed forwhich there was no informed consent must have been a proximate cause of the injury"(Trabal v Queens Surgi-Center, 8 AD3d at 556-557; see Mondo vEllstein, 302 AD2d 437 [2003]; Santilli v CHP, Inc., 274 AD2d 905 [2000];Bernard v Block, 176 AD2d 843, 848 [1991]; Flores v Flushing Hosp. &Med. Ctr., 109 AD2d 198 [1985]). " 'To state it in other terms, the causalconnection between a doctor's failure to perform his [or her] duty to inform and apatient's right to recover exists only when it can be shown objectively that a reasonablyprudent person would have decided against the procedures actually performed. Once thatcausal connection has been established, the cause of action in negligent malpractice forfailure to inform has been made out and a jury may properly proceed to considerplaintiff's damages' " (Trabal v Queens Surgi-Center, 8 AD3d at 557,quoting Dries v Gregor, 72 AD2d 231, 236-237 [1980]).
Here, the Supreme Court's charge to the jury included an instruction on thedefendant's duty to inform the plaintiff of the alternatives to, and the potential risks of,the surgery, but did not include an instruction on the three elements of the cause ofaction. Further, those elements were not accurately reflected in the two verdict sheetinterrogatories submitted to the jury. The jury was asked, first, to determine if thedefendant departed from good and accepted medical practice by failing to provideappropriate information to the plaintiff, and second, if so, whether "such departure" was"a substantial factor in causing injury" to the plaintiff. The charge and the interrogatoriesdid not instruct the jury to determine whether a reasonably prudent person in theplaintiff's position would not have undergone the treatment if fully informed (seePublic Health Law § 2805-d [3]; James v Greenberg, 57 AD3d 849, 850 [2008]; Dooleyv Skodnek, 138 AD2d 102, 106 [1988]; Flores v Flushing Hosp. & Med.Ctr., 109 AD2d 198, 200 [1985]), and whether the plaintiff's injury was caused bythe actual procedure for which there was no informed consent (see Trabal v QueensSurgi-Center, 8 AD3d at 556-557; Santilli v CHP, Inc., 274 AD2d at 907;Foote v Rajadhyax, 268 AD2d 745, 745-746 [2000]; Flores v Flushing Hosp.& Med. Ctr., 109 AD2d at 200-202; PJI 2:150A). Thus, while the jury receivedproper instruction on the issue of departure, the jury did not receive proper instructionwith respect to the causal connection between that departure and the plaintiff's allegedinjury (see Trabal v Queens Surgi-Center, 8 AD3d at 557). Although theplaintiffs failed to preserve for appellate review their specific objections to the chargeand verdict sheet (see CPLR 4110-b), we reach the issue because the errors wereof such a fundamental nature that they warrant the invocation of our interest of justicejurisdiction (see Matter of Stateof New York v Todd L., 118 AD3d 805, 807 [2014]; Krigsfeld v Feldman, 115AD3d 712, 713 [2014]; Gallagher v Samples, 6 AD3d 659, 660 [2004]; Rudolfv Kahn, [*3]4 AD3d 408, 409-410 [2004]).
The plaintiffs' contention that the Supreme Court should have granted that branch oftheir motion which was pursuant to CPLR 4404 (a) to set aside the jury's verdict on thelack of informed consent cause of action and for judgment as a matter of law on the issueof liability on that cause of action is without merit (see Cohen v Hallmark Cards,45 NY2d 493, 499 [1978]; see also Flores v Flushing Hosp. & Med. Ctr.,109 AD2d at 201).
In light of our determination, we need not reach the plaintiffs' contention that theverdict was against the weight of the evidence. Dillon, J.P., Austin, Roman and Barros,JJ., concur.