You are here: / / FAILURE TO DEMONSTRATE SCARRING WAS DISCUSSED PRIOR TO THE SIGNING OF THE...
, ,

FAILURE TO DEMONSTRATE SCARRING WAS DISCUSSED PRIOR TO THE SIGNING OF THE CONSENT FORM, AND FAILURE TO DEMONSTRATE PLAINTIFF WOULD HAVE GONE THROUGH WITH THE SURGERY DESPITE FULL DISCLOSURE ABOUT SCARRING, REQUIRED DENIAL OF PHYSICIAN’S MOTION FOR SUMMARY JUDGMENT.

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[1]…).

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)

You might also like
Client’s Motion to Quash Attorney’s Charging Lien Properly Granted Without a Hearing/No “Conflicting Facts” Concerning Whether the Attorney Was Discharged Was For Cause
DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM IN PROGRESS DOCTRINE.
THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S MOTORCYCLE WAS SO CLOSE AS TO CONSTITUTE AN IMMEDIATE HAZARD WHEN DEFENDANT ATTEMPTED TO MAKE A LEFT TURN ACROSS PLAINTIFF’S LANE OF TRAFFIC; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE BOARD’S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE BOARD’S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT).
THE JUDGE SHOULD NOT HAVE DISMISSED DEFENDANTS’ AFFIRMATIVE DEFENSES BECAUSE PLAINTIFF DID NOT REQUEST THAT RELIEF (SECOND DEPT).
CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR.
STUDENT WITH CEREBRAL PALSY COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME, SUPERVISION WAS ADEQUATE AND INJURY WAS DUE TO A SPONTANEOUS ACT WHICH SUPERVISION COULD NOT PREVENT, SCHOOL’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT).
PLAINTIFF, INTER ALIA, ALLEGED THE FLORIDA DEFENDANT IN THIS FRAUD-BASED ACTION DEPOSITED RELEVANT FUNDS IN A NEW YORK LAW FIRM ESCROW ACCOUNT AND CONVERTED THOSE FUNDS, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD NOT HAVE BEEN GRANTED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

QUESTION OF FACT WHETHER EMPLOYEE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT... QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING...