You are here: / / THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION IN THIS MEDICAL...
,

THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE SUIT SHOULD NOT HAVE BEEN DISMISSED; THERE WAS NO EVIDENCE PLAINTIFF INSISTED ON THE PROCEDURE DESPITE THE RISKS OR DECLINED ANY PROFFERED EXPLANATION OF THE RISKS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court) determined the “lack of informed consent” to back surgery (implantation of an X-STOP device) should not have been dismissed:

As a defense to a medical malpractice action premised upon lack of informed consent, a practitioner may proffer evidence that “the patient assured the medical . . . practitioner that he [or she] would undergo the treatment, procedure or diagnosis regardless of the risk involved, or the patient assured the medical . . . practitioner that he [or she] did not want to be informed of the matters to which he [or she] would be entitled to be informed” (Public Health Law § 2805-d[4][b]). Here, although [plaintiff’s] deposition testimony made clear that he deferred to [defendant surgeon’s] judgment as to whether he should undergo a procedure and, if so, which procedure, it does not establish that [plaintiff] either insisted on the procedure to implant the X-STOP devices, rather than other treatment options, regardless of risk, or that he refused any proffered advice. On the contrary, the record establishes that, far from insisting on a contraindicated procedure, [plaintiff] relied upon [defendant surgeon’s] professional expertise in determining the correct course of treatment. Likewise, although [defendant surgeon’s] testimony establishes that he explained the benefits of performing the procedure to implant the X-STOP devices rather than a laminectomy, he did not testify that he offered, or that [plaintiff] declined, any proffered explanation of the risks and limitations of the procedure to implant the X-STOP devices. Mirshah v Obedian, 2021 NY Slip Op 06994, Second Dept 12-15-21

 

You might also like
THE OPTION TO RENEW THE LEASE WAS NOT ENFORCEABLE; IT WAS MERELY AN AGREEMENT TO AGREE (SECOND DEPT).
REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED.
LINEUP IDENTIFICATION WAS UNDULY SUGGESTIVE, CONVICTION REVERSED (SECOND DEPT).
CONTRACT PROVISION ABOUT ALLOWED USES OF THE DIOCESE’S PROPERTY BY A CATHOLIC SCHOOL WAS AMBIGUOUS, DIOCESE’S SUMMARY JUDGMENT MOTION SEEKING DAMAGES FOR BREACH SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH THE QUESTION WHETHER THE NOTICE REQUIREMENTS OF RPAPL 1304 APPLIED ONLY TO HIGH-COST OR SUBPRIME LOANS WAS NOT RAISED BELOW, THE QUESTION WAS CONSIDERED AND REJECTED ON APPEAL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER STAIRWAY SLIP AND FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS NEGLIGENT MAINTENANCE CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE “SEPARATE ENVELOPE” RULE AND THEREFORE DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PROVISIONS OF POLICY MANUAL DID NOT CONSTITUTE ENFORCEABLE OBLIGATIONS.

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANTS DIRECTED PLAINTIFF TO REMOVE PAINT BY SPRAYING LACQUER WHICH APPARENTLY... THE NYC WATER BOARD DETERMINED PETITIONER WAS NOT ENTITLED TO A RETROACTIVE...