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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.​

 

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