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HERE PLAINTIFF’S SIGNING A CONSENT FORM DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT IN THIS “LACK OF INFORMED CONSENT” MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this “lack of informed consent” medical malpractice case should not have been granted. The court noted that plaintiff’s signing a consent form was not enough to establish defendant’s entitlement to judgment as a matter of law:

“To establish a cause of action to recover damages based upon 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'” … . Thus, “a defendant can establish entitlement to summary judgment by demonstrating that the plaintiff signed a detailed consent form after being apprised of alternatives and foreseeable risks, by demonstrating that a reasonably prudent person in the plaintiff’s position would not have declined to undergo the surgery, or by demonstrating that the actual procedure performed for which there was no informed consent was not a proximate cause of the injury” … . “If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof” … .

Here, the defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent … . “The mere fact that the plaintiff signed a consent form does not establish the defendant[‘s] prima facie entitlement to judgment as a matter of law” … , and the defendant’s submissions, including a transcript of the plaintiff’s deposition testimony, did not establish that the plaintiff was given sufficient information on the risks and alternatives regarding the materials used and the procedures performed … . Furthermore, the defendant failed to establish, prima facie, that the procedure performed for which there was no informed consent was not a proximate cause of the plaintiff’s injury. Rymer v Bernstein, 2026 NY Slip Op 00273, Second Dept 1-21-26

Practice Point: Here n this  “lack of informed consent” medical malpractice action, plaintiff’s signing a consent form did not entitle defendant to summary judgment as a matter of law.

 

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THE TOWN AMBULANCE PARAMEDICS DECIDED NOT TO TAKE PLAINTIFF’S DECEDENT TO THE HOSPITAL; THAT DECISION WAS DISCRETIONARY IN NATURE ENTITLING THE TOWN TO GOVERNMENTAL FUNCTION IMMUNITY IN THIS MED MAL ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the town defendants were entitled to immunity for the actions of the two ambulance paramedics who decided against taking the decedent to the hospital:

“A municipality is immune from liability where the actions of its employees in performing governmental functions involve[ ] the exercise of discretion” … . “[A]mbulance assistance rendered by first responders . . . should be viewed as a classic governmental, rather than proprietary, function” … .

“[D]iscretionary . . . acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . As the First Department recently made clear, “a generally uniform approach in assessment and care does not change the discretionary nature” of a first responder’s actions or the governmental function they provide … . Under the circumstances presented here, we conclude that the Town defendants established that Rutenkroger’s and Rice’s actions were discretionary and, thus, the Town defendants are entitled to governmental function immunity. Indeed, plaintiff’s contentions pertain “to the quality of the care rendered by [Rutenkroger and Rice and,] even if such decisions prove to be erroneous, they do not cast the [Town] in damages” … . We further note that, “[b]ecause the actions of the [Town’s employees] were discretionary, this Court need not address the issue of whether a special duty was owed to [decedent]” … . Gumkowski v Schwaab, 2025 NY Slip Op 07139, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into the difference between discretionary and ministerial actions by government personnel. Here the town was immune from liability in this med mal case because the town ambulance paramedics’ determination that plaintiff’s decedent did not need to be taken to the hospital was a discretionary action (governmental function immunity).

 

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HERE, IN SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST A CITY HOSPITAL ALLEGING MEDICAL MALPRACTICE, THE PETITIONER DID NOT SUBMIT THE MEDICAL RECORDS; THEREFORE THE PETITIONER DID NOT SHOW THAT THE HOSPITAL HAD TIMELY KNOWLEDGE OF THE CLAIM; LEAVE TO FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing the action, determined the petition for leave to file a late notice of claim, alleging medical malpractice, negligence and violation of the Public Health Law on behalf of decedent, should not have been granted. The petitioner did not establish that the city had timely knowledge of the claim, which is the most important criterium for allowing late notice:

​”Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff” … . The petitioner’s “failure to submit evidence of the contents of the alleged records is fatal to [her] argument that the [appellant] acquired actual knowledge from the existence of such records” … . Additionally, there is no suggestion in the record that the appellant refused to produce the medical records or that the petitioner sought to compel the appellant to produce any papers necessary to the determination of the petition pursuant to CPLR 409(a) … . Matter of Giustra v New York City Health & Hosps. Corp., 2025 NY Slip Op 06862, Second Dept 12-10-25

Practice Point: The most important criterium for leave to file a late notice of claim is evidence the city had timely knowledge of the claim. Medical records, depending on their contents, can (but do not necessarily) demonstrate timely knowledge of the claim. Here petitioner did not submit the medical records and therefore did not even attempt to demonstrate the city’s timely knowledge of the nature of the medical malpractice claim. The mere existence of medical records is not enough.​

 

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SUPREME COURT SHOULD NOT HAVE RELIED ON THE “LOCALITY RULE” TO DISMISS THE OPINION OF PLAINTIFF’S EXPERT BECAUSE THE EXPERT PRACTICED MEDICINE IN ANOTHER STATE: WHEN AN EXPERT TESTIFIES ABOUT STANDARDS APPLICABLE THROUGHOUT THE UNITED STATES, THE LOCALITY RULE SHOULD NOT BE INVOKED (THIRD DEPT).

The Third Department, reversing Supreme Court in this medical malpractice action, determined plaintiffs’ expert affidavit was not conclusory or speculative and raised triable questions of fact. The Third Department noted that Supreme Court should not have dismissed plaintiffs’ expert’s (Grant’s) opinion on the ground Grant practiced medicine in a different state. Although the “locality rule” has not been set aside, it does not affect the validity of an opinion based on standards applicable throughout the United States:

… [W]e briefly address Supreme Court’s reliance on the fact that Grant practiced medicine in another state to ostensibly dismiss his opinions. Over 125 years ago in Pike v Honsinger (155 NY 201 [1898]), the Court of Appeals promulgated what has become known as the locality rule … . Under this rule, “the prevailing standard of care governing the conduct of medical professionals demands that a doctor exercise that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where the doctor practices” … . While this rule has not been set aside, this Court has indicated that “the development of vastly superior medical schools and postgraduate training, modern communications, the proliferation of medical journals, along with frequent seminars and conferences, have eroded the justification for th[is] rule” … . With the rise of the Internet and the attendant ease with which information is disseminated, this is even more true today. “Thus, where, as here, a medical expert proposes to testify about minimum standards applicable throughout the United States, the locality rule should not be invoked” … . Kosinski v Wladis, 2025 NY Slip Op 06772, Third Dept 12-4-25

Practice Point: In a med mal case, where an expert testifies about standards applicable throughout the United States, the “locality rule” requiring the application of local standards should no longer be invoked. Here plaintiffs’ expert’s opinion was erroneously dismissed because the expert practiced medicine in a different state.

 

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THE MOTION COURT PROPERLY ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFF’S COUNSEL IN THIS MED MAL CASE TO RESCIND THE CORRESPONDENCE SENT TO PLAINTIFF’S TREATMENT PROVIDERS WHICH DISCOURAGED THEM FROM SPEAKING WITH DEFENSE COUNSEL; THE DISSENT ARGUED THE MAJORITY WAS IMPROPERLY ISSUING AN ADVISORY OPINION (FOURTH DEPT).

The Fourth Department, over a dissent which argued the majority was improperly issuing an advisory opinion, determined the trial judge in this medical malpractice action properly ordered plaintiff’s counsel rescind correspondence sent to treatment providers which discouraged the treatment providers from speaking with defense counsel. The correspondence accompanied the “Arons” speaking authorizations executed by the plaintiff:

… [A] plaintiff who signs an authorization allowing a treating physician to speak to defense counsel about the plaintiff’s medical condition at issue should not be allowed to send a letter separately to the same physician requesting that the physician not speak to defense counsel. Permitting plaintiffs to make such a request would undermine the purpose of the Arons authorization and, at the very least, be confusing to the physician … .

Adding to the confusion is the statement “I value and wish to protect the confidentiality of our physician-patient relationship,” which may lead the physician to conclude that, notwithstanding plaintiff’s execution of the speaking authorization, plaintiff was not actually waiving the physician-patient privilege or the privacy protections afforded by HIPAA. …

… [T]he letter … might lead the physician to believe, wrongly, that plaintiff has a right to attend any informal interview with defense counsel. … [A] defendant’s attorney may ask treating physicians to participate in ex parte interviews, which by definition do not involve the plaintiff. While a physician may insist that the plaintiff be present for such an interview, that is a decision for the physician alone to make. Just as a defendant’s attorney has no right to interview the physician informally … , a plaintiff has no right to attend the interview (the plaintiff has only the right to ask the physician for permission to attend an interview).

Based on the above, we cannot conclude that the court abused its discretion in directing plaintiff “to send correspondence to his treating physicians rescinding all prior letters sent containing the language that the [c]ourt has deemed to be confusing, misleading and/or intimidating.”  Murphy v Kaleida Health, 2025 NY Slip Op 06421, Fourth Dept 11-21-25

Practice Point: Here the letters sent to treatment providers by plaintiff’s counsel, which accompanied the “Arons” speaking authorizations, improperly discouraged the treatment providers from speaking with defense counsel. Plaintiff’s counsel was properly ordered to rescind the correspondence.

 

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DEFENDANT HOSPITAL’S EMERGENCY ROOM PERSONNEL WERE UNAWARE PLAINTIFF HAD EXECUTED A “MOLST” DECLINING LIFE-SAVING TREATMENT WHEN THEY PERFORMED CHEST COMPRESSIONS WHICH REVIVED PLAINTIFF BUT FRACTURED RIBS; PLAINTIFF SUFFERED ANOTHER HEART ATTACK SEVEN HOURS LATER AND DIED; A JURY AWARDED DAMAGES FOR PAIN AND SUFFERING; PLAINTIFF’S EXPERT DID NOT SUFFICIENTLY ARTICULATE A STANDARD OF CARE OR A VIOLATION OF A STANDARD OF CARE; THE DEFENSE MOTION FOR A DIRECTED VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant hospital’s motion for a directed verdict in this med mal case, determined the plaintiff’s expert did not establish the applicable standard of care or a breach thereof. Plaintiff had executed a Medical Order for Life-Sustaining Treatment (MOLST) declining life-saving measures. Hospital personnel were not aware of the MOLST when plaintiff presented in the emergency room. When plaintiff became unresponsive, chest compressions were performed. Plaintiff was revived but he had suffered rib fractures. The plaintiff suffered a second heart attack and died seven hours later. The jury awarded damages for pain and suffering:

… [T]he court erred in denying [defendant’s] motion for a directed verdict. “[V]iewing the evidence in [the] light most favorable to [plaintiff] and affording [plaintiff] the benefit of every inference,” we conclude that there was “no rational process by which a jury could find in favor of” plaintiff inasmuch as there was no expert testimony establishing the applicable standard of care or a breach thereof … . At trial, plaintiff’s expert described how a hospital could communicate a patient’s MOLST in order to ensure that it was honored, what hospitals were “allowed” to do, what he would “expect,” what “should” happen, and what “option[s]” were available, but he did not state what an accepted standard of care required. Further, even assuming, arguendo, that plaintiff’s expert articulated a standard of care, we conclude that he failed to opine that any such standard was violated under the specific circumstances of this case … . Cianci v University of Rochester, 2025 NY Slip Op 06492, Fourth Dept 11-21-25

Practice Point: Consult this decision for an example of vague expert testimony in a med mal case which failed to articulate a standard of care or a breach thereof.

 

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MOTHER IS PRECLUDED FROM RECOVERING PURELY EMOTIONAL DAMAGES FOR PRENATAL TORTS BASED ON A LACK-OF-INFORMED-CONSENT THEORY; THE CHILD WAS BORN ALIVE IN SERIOUS CONDITION AND DIED SOON THEREAFTER; MOTHER ALLEGED SHE DID NOT CONSENT TO THE FAILED VACUUM EXTRACTION PROCEDURE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Singas, over two dissenting opinions (three judges), determined plaintiff mother was precluded from recovering purely emotional damages for prenatal torts based on lack of informed consent. The child was born alive but died shortly thereafter. Mother alleged she did not consent to the unsuccessful vacuum extraction procedure:

In this appeal, we must determine whether this Court’s precedent limiting recovery of purely emotional damages for prenatal torts, as reaffirmed in Sheppard-Mobley v King (4 NY3d 627 [2005]), applies to medical malpractice claims premised on lack of informed consent. We hold that it does. We are further asked, by plaintiff and the Appellate Division, to overrule our unanimous holding in Sheppard-Mobley and prior cases dictating that result. Adherence to stare decisis principles leads us to decline that invitation. * * *

Though Sheppard-Mobley involved a “traditional” medical malpractice claim, its holding was clear: a birthing parent may not “recover damages for emotional harm where . . . alleged medical malpractice causes in utero injury to the fetus, subsequently born alive” (4 NY3d at 634). As our case law and the Public Health Law make clear, a lack of informed consent claim is a type of medical malpractice claim … . Thus, a straightforward reading of Sheppard-Mobley forecloses plaintiff’s claim. SanMiguel v Grimaldi, 2025 NY Slip Op 05780, CtApp 10-21-25

Practice Point: Adhering to precedent, the Court of Appeals determined mother was precluded from recovering purely emotional damages for prenatal torts based on a lack-of-informed-consent theory. The child was born alive in serious condition. Mother alleged she did not consent to the failed vacuum extraction procedure.

 

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CONFLICTING EXPERT OPINIONS PRECLUDE SUMMARY JUDGMENT IN A MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this medical malpractice action had, through his expert’s affidavit, raised a question of fact whether the defendant primary care physician departed from good and accepted medical practice. Although defendant referred plaintiff to a urologist based upon an elevated PSA level (a possible sign of prostate cancer), defendant did not mention the elevated PSA level in the referral:

… [P]laintiff raised a triable issue of fact by submitting the affirmation of an expert, who opined that “[i]t is the referring physician’s duty to provide the specialist with all the necessary information to provide a comprehensive specialty consultation.” The plaintiff’s expert explained that, at the plaintiff’s initial consultation with the urologist, the plaintiff’s elevated PSA level was not addressed because Rosen failed to inform the first urologist of the plaintiff’s elevated PSA level. The plaintiff’s expert also stated that Rosen, as a primary care physician, should have ordered another PSA test eight weeks after the initial test to confirm the elevated PSA level, which would have allowed Rosen to better diagnose the plaintiff.

… The defendants’ expert’s conclusory assertion that “the existence of the plaintiff’s prostate cancer, and the course it followed, were wholly unrelated to the care administered” by [defendant] Rosen was insufficient to establish that Rosen’s alleged negligence did not proximately cause or exacerbate the plaintiff’s injuries … . Because there are conflicting expert opinions … Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them … . Autieri v Rosen, 2025 NY Slip Op 04858, Second Dept 9-10-25

Practice Point: Conflicting expert opinions preclude summary judgment in a medical malpractice action. Conclusory statements in an expert affidavit do not raise a question of fact.​

 

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HERE IN THIS MED MAL ACTION, THE COVID-RELATED IMMUNITY CODIFIED IN THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WARRANTED SUMMARY JUDGMENT DISMISSING THE CAUSES OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN APRIL 2020, BUT NOT THE CAUSE OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN MARCH 2020, BEFORE HIS OFFICE WAS CLOSED PURSUANT TO THE COVID EMERGENCY DECLARATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively, and (2), the EDTPA did not provide COVID-related immunity for defendants’ treatment of plaintiff in March, 2020, but did provide immunity for defendants’ treatment of plaintiff in April, 2020:

On March 16, 2020, the plaintiff sought treatment for nausea, constipation, and vomiting from the defendant Joseph Tromba and was examined at Tromba’s medical office at the defendant Long Island Gastroenterology, P.C. On March 23, 2020, the medical office was closed pursuant to the emergency declaration in New York State during the COVID-19 pandemic, but Tromba spoke to the plaintiff on the telephone on April 1, April 3, and April 6, 2020. On April 6, 2020, the plaintiff presented to a hospital and underwent emergency surgery for a bowel obstruction. * * *

“[T]he EDTPA  … provided … that a health care facility ‘shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services’ [if] the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives, and the services were arranged or provided in good faith” … .

… [T]he defendants’ submissions in support of their motion for summary judgment failed to establish … that the treatment of the plaintiff on March 16, 2020, was impacted by the defendants’ decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives.  * * *

[Defendants established] the three requirements for immunity were satisfied with respect to their treatment of the plaintiff on April 1, April 3, and April 6, 2020 … . Tromba testified at his deposition that from March 23, 2020, through May 2020, his office was closed pursuant to the emergency declaration and he was “dealing with” his patients “as well as [he could] without seeing them physically.” Regarding the plaintiff specifically, Tromba testified that he could not see her in his office due to the COVID-19 pandemic and her reticence to leave the house. He also testified that he wanted the plaintiff to go for an X-ray in order to see the quantity of stool in her bowel. However, due to the COVID-19 pandemic, the only place that the plaintiff could obtain an X-ray was an emergency room. The plaintiff testified at her deposition, among other things, that she did not want to go for an X-ray because she had COPD, her husband had emphysema, and it “was in the middle of COVID.” Although she also testified that she would have gone for an X-ray if she thought it would have helped her, she nevertheless testified that this “was when COVID was going on” and she “didn’t even know where [she] could get an X-ray at that point.” This testimony was sufficient to establish, prima facie, that the plaintiff’s treatment on April 1, April 3, and April 6, 2020, was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives … . Sapienza v Tromba, 2025 NY Slip Op 04672, Second Dept 8-13-25

Practice Point: Consult this decision for an example of how the COVID-related immunity codified in the Emergency or Disaster Treatment Protection Act (EDTPA) can be applied in a medical malpractice action.

 

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PLAINTIFF IN THIS MED MAL ACTION SHOULD NOT HAVE BEEN PRECLUDED FROM PRESENTING EVIDENCE DECEDENT SHOULD HAVE BEEN GIVEN A BLOOD TRANSFUSION ON THE GROUND THE ISSUE WAS NOT PLED AND PLAINTIFF’S REQUEST FOR A MISSING WITNESS JURY INSTRUCTION WHEN THE DEFENSE INDICATED IT WAS NOT GOING TO CALL THREE DEFENDANTS SHOULD HAVE BEEN GRANTED; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, ordering a new trial in this medical malpractice action after a defense verdict, determined plaintiff’s should not have been precluded from presenting evidence that decedent should have received a blood transfusion in the emergency room on the ground the issue had not been pled and the judge should have given the missing witness jury instruction after the defense indicated it was not going call three defendants:

… [P]laintiff from the outset alleged that the ED [emergency department] defendants failed to act upon complaints, signs, symptoms, and diagnostic testing, and such allegations were neither new nor would have been a surprise to the ED defendants because they had responded during summary judgment motion practice to the allegation that they should have acted upon the drop in hemoglobin and hematocrit levels. …

… [T]he court abused its discretion in failing to give a missing witness charge for defendants Patel, Chan, and Alexander. A trier of fact in a civil proceeding may draw the strongest inference that the opposing evidence permits against a party who fails to testify … . This type of instruction, which is commonly referred to as a missing witness charge, “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” … . In seeking use of this charge, “[t]he burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call [the witness] to testify” … . Once the foregoing is established, the burden shifts to the party opposing the charge “to account for the witness'[s] absence or otherwise demonstrate that the charge would not be appropriate” … . The opposing party’s burden can be met by demonstrating, inter alia, that “the testimony would be cumulative to other evidence” … . Heinrich v Serens, 2025 NY Slip Op 04318, Fourth Dept 7-25-25

Practice Point: Consult this decision for insight into when the court should give the missing witness jury instruction. Here in the med mal case the defense notification that it was not going to call three defendants as witnesses justified plaintiff’s request for the instruction. Under the facts, the request should have been granted.​

 

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