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THE LACK OF INFORMED CONSENT CAUSE OF ACTION IN THIS DENTAL MALPRACTICE CASE SHOULD NOT HAVE BEEN DISMSSED DESPITE PLAINTIFF’S SIGNING A CONSENT FORM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the lack of informed consent cause of action should not have been dismissed in this dental malpractice action:

To establish a cause of action for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to inform the patient of reasonably foreseeable risks and benefits associated with the treatment, and the alternatives thereto, that a reasonable medical practitioner would have disclosed under similar 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 (see Public Health Law § 2805-d …). “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” … .

Here, although the injured plaintiff signed a consent form, the defendants submitted in support of their motion, inter alia, a transcript of the injured plaintiff’s deposition, during which she testified that the defendants never explained the risks of the tooth extraction or whether there were any alternatives … . Xiao Yan Ye v Din Lam, 2021 NY Slip Op 00895, Second Dept 2-10-21

 

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FAILURE TO INCLUDE THE LACK OF STANDING DEFENSE IN THE ANSWER IS NO LONGER DEEMED... COMPLIANCE WITH THE NOTICE REQUIREMENT OF RPAPL 1304 WAS NOT PROVEN IN THIS...