You are here: / / WHERE THE ESSENCE OF A MEDICAL MALPRACTICE ACTION IS THE FAILURE TO PROPERLY...
,

WHERE THE ESSENCE OF A MEDICAL MALPRACTICE ACTION IS THE FAILURE TO PROPERLY DIAGNOSE PLAINTIFF’S CONDITION, THE CRITERIA FOR A “LACK OF INFORMED CONSENT” CAUSE OF ACTION ARE NOT MET (SECOOND DEPT

The Second Department, reversing (modifying) Supreme Court in this medical malpractice action, determined the “lack of informed consent” cause of action should have been dismissed because the gravamen of the the allegations was the failure to evaluate the seriousness of plaintiff’s condition:

To establish a cause of action to recover damages for medical 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 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” … . However, where, as here, the gravamen of a plaintiff’s allegations are essentially that, due to their negligence, the defendants failed to evaluate the seriousness of the patient’s condition, “‘with the result that affirmative treatment was not sought in a timely manner,'” a plaintiff fails to state cause of action based on lack of informed consent … . Danziger v Mayer, 2025 NY Slip Op 01354, Second Dept 3-12-25

Practice Point: Consult this decision for a clear explanation of the nature and elements of a “lack of informed consent” cause of action in a med mal case.​

 

You might also like
THE MERE DISCONTINUANCE OF THE PRIOR FORECLOSURE ACTION DID NOT DE-ACCELERATE THE MORTGAGE DEBT; EXPLICIT NOTICE OF DE-ACCELERATION IS REQUIRED EITHER IN THE MOTION TO DISCONTINUE ITSELF OR IN A SEPARATE NOTICE; THEREFORE THE INSTANT FORECLOSURE ACTION IS TIME-BARRED (SECOND DEPT).
SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION.
THE BANK’S SECOND MOTION IN THIS FORECLOSURE ACTION DID NOT MEET THE CRITERIA FOR A MOTION TO RENEW AND VIOLATED THE “SUCCESSIVE SUMMARY JUDGMENT MOTION” RULE (SECOND DEPT).
Admissible Hearsay Concerning the Child’s Injuries and Evidence Relevant to the Child’s Motivation to Lie Should Not Have Been Excluded from the Neglect Proceeding
Arbitrator Exceeded His Authority by Modifying Punishment Imposed by Town Upon Employee for Misconduct
DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT).
DEFENSE COUNSEL INEFFECTIVE FOR CONCEDING DEFENDANT SUFFERS FROM A DANGEROUS MENTAL DISORDER; COUNTY COURT SHOULD HAVE HELD THE MANDATORY STATUTORY HEARING; APPEAL IS NOT ACADEMIC BECAUSE OF LASTING CONSEQUENCES OF THE ‘DANGEROUS MENTAL DISORDER’ FINDING (SECOND DEPT).
Defendant Entitled to Summary Judgment–Activity (Routine Cleaning) Not Covered by Labor Law 240 (1)—Re: Labor Law 200 and Common Law Negligence: Equipment Provided by Defendant Not Defective; Defendant Did Not Have Authority to Control Plaintiff’s Work

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

RECORDING THE DEED IS NOT NECESSARY FOR THE TRANSFER OF TITLE; THEREFORE A FORGED... RESTRAINING A PERSON FOR A FEW SECONDS WHILE ATTEMPTING TO PULL THAT PERSON...