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A SIGNED CONSENT FORM ALONE DOES NOT PRECLUDE A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION IN A MEDICAL MALPRACTICE CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact precluded summary judgment in this medical malpractice/lack of informed consent case: The court noted that a signed consent form does not preclude a lack-of-informed-consent cause of action:

To establish a cause of action to recover damages for malpractice 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 fact that a plaintiff signed a consent form, standing alone, does not establish a defendant’s prima facie entitlement to judgment as a matter of law … . Here, the defendants’ submissions failed to establish, prima facie, that the plaintiff was informed about the risks and benefits of inducing labor immediately, and the available alternatives thereto. Thus, the defendants failed to establish the absence of triable issues of fact with respect to the cause of action alleging lack of informed consent … . Guinn v New York Methodist Hosp., 2023 NY Slip Op 00308, Second Dept 1-25-23

Practice Point: Even if plaintiff in a medical malpractice action signed a consent form, a lack-of-informed-consent cause of action may survive summary judgment.

 

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