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THE SURGICAL PROCEDURE FOR WHICH THERE ALLEGEDLY WAS NO CONSENT WAS NOT DEMONSTRATED TO BE THE PROXIMATE CAUSE OF THE CLAIMED INJURIES, THEREFORE THE LACK OF INFORMED CONSENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert’s affirmation concerning the alleged malpractice was deemed conclusory and therefore did not raise a question of fact. The informed consent cause of action was dismissed because the medical procedure was not the proximate cause of the claimed injuries:

To establish a cause of action to recover damages 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 lack of informed consent is a proximate cause of the injury'” … . ” The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury'” … . Here, the defendants established through their expert affirmation that the surgery performed … did not proximately cause the injured plaintiff’s claimed injuries … . Gilmore v Mihail, 2019 NY Slip Op 05647, Second Dept 7-17-19

 

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