The Fourth Department determined plaintiffs’ battery and medical malpractice causes of action properly survived summary judgment. The court noted that the defendants had submitted plaintiff’s testimony in support of summary judgment and thereby demonstrate triable issues of fact. With respect to the battery cause of action, the court wrote:
It is “well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all’ ” … . Here, plaintiffs allege in the complaint that “defendant physician knew that . . . she was exceeding the scope of . . . plaintiff’s consent by performing a medical procedure that . . . plaintiff had not authorized” … and, inasmuch as defendants do not challenge the battery claim with respect to the element of causation, we conclude that plaintiffs have stated such a claim. Tirado v Koritz, 2017 NY Slip Op 08954, Fourth Dept 12-22-17
NEGLIGENCE (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’s TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT))/MEDICAL MALPRACTICE (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)/BATTERY (MEDICAL MALPRACTICE, (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)