The Second Department determined defendant physician (Barazani) was not entitled to summary judgment on the “lack of informed consent” cause of action, despite the plaintiff’s signing of a consent form. Although the consent form mentioned scarring as a possibility, there was no showing the defendant discussed scarring with the plaintiff before the consent form was signed. In addition, there was no showing plaintiff would have gone through with the surgery had scarring been adequately discussed. [Another example of the need for a defendant seeking summary judgment to affirmatively address every possible theory of recovery.]:
To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the actual procedure performed for which there was no informed consent was the proximate cause of the injury (see Public Health Law § 2805-d…).
Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent. The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law … . The consent form provided by the defendants and signed by the plaintiff warned generally that there was a risk of scarring after the biopsy was conducted. However, the deposition testimony of the plaintiff and Barazani, which was submitted by the defendants in support of their motion, revealed a factual dispute as to whether Barazani properly advised the plaintiff of the risk of scarring before she signed the form … . The defendants also failed to establish, prima facie, that if the plaintiff had received full disclosure, she still would have consented to the procedure … . Schussheim v Barazani, 2016 NY Slip Op 00958, 2nd Dept 2-10-16
NEGLIGENCE (MEDICAL MALPRACTICE, INFORMED CONSENT, DEFENDANT’S FAILURE TO AFFIRMATIVELY DEMONSTRATE SCARRING DISCUSSED PRIOR TO SIGNING OF CONSENT FORM AND FAILURE TO DEMONSTRATE PLAINTIFF WOULD HAVE GONE THROUGH WITH THE SURGERY DESPITE FULL DISCLOSURE REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION)/MEDICAL MALPRACTICE (INFORMED CONSENT, DEFENDANT’S FAILURE TO AFFIRMATIVELY DEMONSTRATE SCARRING DISCUSSED PRIOR TO SIGNING OF CONSENT FORM AND FAILURE TO DEMONSTRATE PLAINTIFF WOULD HAVE GONE THROUGH WITH THE SURGERY DESPITE FULL DISCLOSURE REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION)