The Second Department, affirming Supreme Court, determined defendants’ motions for summary judgment on the lack of informed consent cause of action were properly denied. Plaintiff had signed a consent form but alleged the wrong tooth was extracted:
“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” … . “To establish a cause of action for malpractice based on lack of informed consent, 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 lack of informed consent is a proximate cause of the injury” … . “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”… .
… Supreme Court properly determined that triable issues of fact precluded an award of summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against them. The deposition testimony of the parties and the generic consent form signed by the plaintiff revealed a factual dispute as to whether the plaintiff was adequately informed about the extraction, namely which tooth would be removed… . In addition, each of the expert opinions submitted on the summary judgment motions was in agreement that a root canal was a viable alternative treatment to the extraction of tooth number four. Thus, there were triable issues of fact as to whether a reasonably prudent patient in the plaintiff’s position would have undergone the extraction of tooth number four if he or she had been fully informed … . Godel v Goldstein, 2017 NY Slip Op 08260, Second Dept 11-22-17
NEGLIGENCE (DENTAL MALPRACTICE, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))/MEDICAL MALPRACTICE (LACK OF INFORMED CONSENT, DENTAL MALPRACTICE, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))/DENTAL MALPRACTICE (LACK OF INFORMED CONSENT, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, DESPITE PLAINTIFF’S SIGNING A CONSENT FORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED (SECOND DEPT))