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THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION WERE NOT ACCURATELY STATED IN THE JURY INSTRUCTIONS AND VERDICT SHEET; MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department reversed Supreme Court, in the interest of justice, because the jury instructions and verdict sheet did not accurately state the elements of malpractice based upon a lack of informed consent. Plaintiff’s motion to set aside the verdict should have been granted. The elements of a “lack of informed consent” cause of action were explained:

“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” … . 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 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” … . ” To state it in other terms, the causal connection between a doctor’s failure to perform his [or her] duty to inform and a patient’s right to recover exists only when it can be shown objectively that a reasonably prudent person would have decided against the procedures actually performed. Once that causal connection has been established, the cause of action in negligent malpractice for failure to inform has been made out and a jury may properly proceed to consider plaintiff’s damages’ ” … . Figueroa-Burgos v Bieniewicz, 2016 NY Slip Op 00329, 2nd Dept 1-20-16

NEGLIGENCE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/JURIES (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/JURY INSTRUCTIONS (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/VERDICT SHEET (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/INFORMED CONSENT, LACK OF (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)

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JURY CONFUSION, STEMMING FROM THE WORDING OF THE SPECIAL VERDICT SHEET, MANDATED A NEW TRIAL.

The First Department, in three, two-justice concurring opinions, determined plaintiff’s motion to set aside the jury verdict should have granted on “jury confusion” grounds. Plaintiff had a kidney removed for his father’s transplant procedure. A “knot pusher device” was left inside plaintiff, and he underwent a second surgery to remove it. The jury, based on the special verdict sheet, indicated leaving the “knot pusher device” inside plaintiff was not the proximate cause of his injury, but the jury sent out a note stating the plaintiff should be awarded $50,000 for having to undergo the second procedure:

 

An examination of the record reveals that the special verdict sheet was “unclear and confusing” …, because it did not provide for an award of damages caused by the need to undergo a second surgery. The confusing and ambiguous wording of the verdict sheet caused the jurors to experience substantial confusion in reaching their verdict … . While “[t]he ambiguity had been brought to the attention of the trial Justice before the jury was discharged and could have been corrected or at least clarified at that time” …, the court did not do so and a new trial  … is required to prevent a miscarriage of justice. Srikishun v Edye, 2016 NY Slip Op 00315, 1st Dept 1-19-16

 

NEGLIGENCE (CONFUSION CAUSED BY SPECIAL VERDICT SHEET MANDATED A NEW TRIAL)/MEDICAL MALPRACTICE (CONFUSION CAUSED BY SPECIAL VERDICT SHEET MANDATED A NEW TRIAL)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT BECAUSE OF JURY CONFUSION STEMMING FROM THE VERDICT SHEET SHOULD HAVE BEEN GRANTED)/JURIES (NEW TRIAL SHOULD HAVE BEEN GRANTED DUE TO CONFUSION STEMMING FROM THE SPECIAL VERDICT SHEET)/VERDICT SHEET (CONFUSING SPECIAL VERDICT SHEET WARRANTED A NEW TRIAL)

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DOCTORS, WHO ALLEGEDLY FAILED TO WARN PATIENT OF DISORIENTING EFFECTS OF DRUGS, OWED A DUTY OF CARE TO PLAINTIFF, WHO WAS STRUCK BY A VEHICLE DRIVEN BY THE PATIENT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over an extensive dissenting opinion by Judge Stein (in which Judge Abdus-Salaam concurred), determined a medical malpractice complaint alleging defendant hospital and doctors owed a duty of care to plaintiff, who was injured by a patient, should not have been dismissed. The patient was treated with drugs which could impair her ability to drive but allegedly was not warned of that effect by the treating doctors.  Shortly after leaving the hospital, the patient crossed a double yellow line and struck plaintiff's vehicle. The Court of Appeals held that the injured plaintiff's complaint, which alleged the negligent failure to warn the patient of the impairment of the ability to drive, stated a cause of action, sounding in medical malpractice, against the defendant hospital and doctors:

Here, put simply, to take the affirmative step of administering the medication at issue without warning [the patient] about the disorienting effect of those drugs was to create a peril affecting every motorist in [the patient's] vicinity. Defendants are the only ones who could have provided a proper warning of the effects of that medication. Consequently, on the facts alleged, we conclude that defendants had a duty to plaintiffs to warn [the patient] that the drugs administered to her impaired her ability to safely operate an automobile … . Davis v South Nassau Communities Hosp., 2015 NY Slip Op 09229, CtApp 12-16-15

NEGLIGENCE (DOCTORS OWED DUTY OF CARE TO PERSON INJURED BY DRUGGED PATIENT)/MEDICAL MALPRACTICE (DOCTORS OWED DUTY OF CARE TO PERSON INJURED BY DRUGGED PATIENT)/MEDICAL MALPRACTIVE (FAILURE TO WARN PATIENT OF DISORIENTING EFFECT OF ADMINISTERED DRUGS)

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Elderly Patient’s Fall from an Examining Table Implicated a Duty of Care Which Takes Into Account Patient’s Infirmities/Elderly and Infirm Patient’s Fall from Examining Table Sounds in Medical Malpractice, Not Ordinary Negligence

The Third Department, in a full-fledged opinion by Justice Garry, determined a new trial was necessary in a case stemming from 81-year-old plaintiff’s decedent’s fall from an examining table in a doctor’s office. The Third Department found that the trial judge fashioned a jury instruction which erroneously included premises liability principles and erroneously failed to take into account the particular infirmities of plaintiff’s decedent. In addition the trial court erroneously determined the case sounded in negligence, as opposed to medical malpractice:

Recovery in a premises liability action is predicated on “ownership, occupancy, control or special use of [a] property” where a dangerous or defective condition exists … . Here, decedent neither alleged that [defendant’s] liability arose from its ownership of dangerous or defective premises nor that any defects or dangerous conditions existed … . Instead, decedent asserted that [defendant] was liable for the acts and omissions of its employees in failing to recognize the need for, or provide decedent with, adequate assistance and supervision — an analysis unrelated to the physical condition of the medical office or the legal principles underlying premises liability. Supreme Court’s attempt to combine the two concepts resulted in an instruction that improperly advised the jury that decedent was required to prove that the premises were unsafe. Moreover, the instruction confusingly directed the jury to evaluate the actions of the medical assistant twice, first by determining whether her actions were “reasonably safe” and then — without clarifying the distinction, if there is one — whether those same actions were negligent.

The modified instruction further misstated the threshold issue of the applicable duty of care. “Although the existence of a duty is a question of law to be determined by the courts, the factfinder must be instructed on the nature and scope of such duty so as to ascertain any breach thereof” … . The modified instruction used the language of PJI 2:90 to charge the jury that “[t]he possessor of a building has a duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable,” followed by new language advising the jury that “[a] facility also has a duty to exercise ordinary and reasonable care to ensure that no unnecessary harm befalls a patient.” The first of the two statements pertains to premises liability and, as previously discussed, is inapplicable here. The second statement, although not inapplicable to a negligence analysis, is incomplete. It is well settled that a medical facility used by persons who may be ill, disabled or otherwise vulnerable “ha[s] a duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient to provide for his [or her] own safety” … . “The degree of reasonable care is measured by the physical and mental infirmities of the patient[] as the [facility’s] officials and employees know them” … . * * *

The assessment of a patient’s risk of falling as a result of his or her medical condition, and the patient’s consequent need for assistance, protective equipment or supervision, are medical determinations that sound in malpractice … . Likewise, whether Horizon breached applicable standards of care for medical offices in supervising and assisting decedent in view of her medical condition “necessitates a comparison to the standard of care customarily exercised by [comparable medical facilities] . . . [that] cannot be determined without a full appreciation and understanding of the operational demands and practices of [such facilities]” and raises issues of malpractice rather than negligence … .

Expert testimony is a necessary part of a malpractice action, as the plaintiff is required to establish the relevant professional standard of care … . This case hinges upon a malpractice standard. Martuscello v Jensen, 2015 NY Slip Op 07711, 3rd Dept 10-22-15

 

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Relation Back Doctrine Did Not Apply to Causes of Action in Amended Complaint—Amendment Should Not Have Been Allowed

The Second Department determined Supreme Court should not have allowed the amendment of a medical malpractice complaint to add causes of action for negligent hiring and supervision. The negligent hiring and supervision allegations were time barred and were different from the medical malpractice allegations such that the relation back doctrine did not apply:

Pursuant to CPLR 203(f), claims asserted in an amended complaint are “deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading” (CPLR 203[f]). Thus, when the nature of a newly asserted cause of action is distinct from the causes of action asserted in the original complaint, and requires different factual allegations as to the underlying conduct than were contained in the original complaint, the new claims will not “relate back” in time to the interposition of the causes of action in the original complaint … . Here, the Supreme Court erred in determining that the allegations in the original complaint in support of the causes of action alleging medical malpractice and lack of informed consent gave [defendant] notice of the “transactions, occurrences, or series of transactions or occurrences, to be proved” with respect to the claims of negligent hiring and supervision … . The causes of action alleging medical malpractice and lack of informed consent are distinct not only as to the conduct alleged, but also as to the dates on which the conduct occurred and who engaged in it … . The mere reference to “negligence” in the original complaint did not give [defendant] notice of the transactions, occurrences, or series of transactions or occurrences, to be proved with respect to the proposed causes of action alleging negligent hiring and negligent supervision. Thus, those proposed causes of action could not be deemed to relate back to the interposition of the causes of action in the original complaint … . Calamari v Panos, 2015 NY Slip Op 06875, 2nd Dept 9-23-15

 

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Plaintiff Raised a Triable Issue of Fact Under the Doctrine of Res Ipsa Loquitur—Plaintiff Alleged a Bone Was Fractured During Surgery

The Second Department determined plaintiff had raised a triable issue fact in a medical malpractice action under the doctrine of res ipsa loquitur. The complaint alleged that, during surgery on her shoulder, a bone was fractured. The court explained the analytical criteria:

“[R]es ipsa loquitur [is] available in a narrow category of factually simple medical malpractice cases requir[ing] no expert to enable the jury to reasonably conclude that the accident would not happen without negligence” … . The doctrine is available when (1) the event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event is caused by an agent or instrumentality within the exclusive control of the defendant; and (3) the event was not caused by any voluntary action or contribution on the part of the plaintiff … . “The doctrine is generally available to establish a prima facie case when an unexplained injury in an area which is remote from the treatment site occurs while the patient is anesthetized” … . “In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized” … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by [the] defendant’s negligence. Stated otherwise, all that is required is that the likelihood of other possible causes of the injury be so reduced that the greater probability lies at defendant’s door” … . Swoboda v Fontanetta, 2015 NY Slip Op 06804, 2nd Dept 9-16-15

 

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Criteria for Vicarious Liability of Hospital for Actions of Non-Employee Physician Explained (Not Met Here)

The Second Department determined summary judgment dismissing the complaint should have been granted to defendant hospital. The suit against the hospital was based upon the actions of a non-employee physician chosen by the plaintiff.  The Second Department succinctly explained the theories under which a hospital may be liable for the actions of a non-employee physician (none of which applied here):

Generally speaking, a hospital may not be held vicariously liable for the negligence of a private attending physician chosen by the patient … . Moreover, so long as the resident physicians and nurses employed by the hospital have merely carried out that private attending physician’s orders, a hospital may not be held vicariously liable for resulting injuries … . These rules will not, however, shield a hospital from liability in three situations. The first is when the private physician’s orders “so greatly deviate from normal medical practice that [the hospital’s employees] should be held liable for failing to intervene” … . Put another way, a hospital may be held liable when the staff follows orders despite knowing “that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders” … . Second, a hospital may be held liable when its employees have committed independent acts of negligence … . Third, a hospital may be held liable for the negligence of a private, nonemployee physician on a theory of ostensible or apparent agency … . Doria v Benisch, 2015 NY Slip Op 06109, 2nd Dept 7-15-15

 

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In the Absence of Prejudice to Defendants, It Was Not Error to Allow Evidence of a Theory of Liability Not Explicitly Referenced in the Complaint and Bill of Particulars

The Third Department determined evidence of a theory of liability that was not explicitly included in the pleadings and bill of particulars was not error. The theory was implicit in the pleadings and the defendants could not have been surprised by the related evidence. The court noted it would have been better had the plaintiffs moved to conform the pleadings to the evidence:

Generally, a party is limited to presenting evidence at trial that supports a cause of action or theory of recovery that was either pleaded in the complaint or asserted in the bill of particulars … . However, evidence concerning a specific theory or injury not mentioned in the bill of particulars may nonetheless avoid exclusion where such proof necessarily flows from the information conveyed in the pleadings and where the defendants should have been aware of the basis thereof… .

The contested theory of liability in this case is based on the allegedly erroneous interpretation of plaintiff’s February CT scan by Beatty (hereinafter referred to as the Beatty theory). It is worth noting that, because the complaint and bills of particulars do not contain an express articulation of the Beatty theory, the better practice certainly would have been for plaintiff to seek leave to amend his pleadings in advance of trial or at least have moved to conform the pleadings to the proof after the trial was underway. However, we nonetheless find that Supreme Court’s determinations allowing plaintiff to advance the Beatty theory at trial, including permitting plaintiff’s expert to offer testimony on the theory, do not constitute reversible error. In our view, the complaint— * * * which reference[s] the February CT scan as a basis for a departure from accepted medical practice — [was] sufficient to notify defendants of the Beatty theory and, as such, permit that theory of liability to be advanced at trial without prejudice. Simply put, we are unpersuaded by defendants’ position that they were not aware of the Beatty theory as a basis for a potential finding of medical malpractice. Boyer v Kamthan, 2015 NY Slip Op 05983, 3rd Dept 7-9-15

 

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Patient’s Suicide Was Not a Foreseeable Consequence of Doctor’s Alleged Failure to Properly Diagnose and Treat Patient’s Abdominal Pain

The Third Department affirmed summary judgment granted to defendant doctor (Skezas).  Plaintiff alleged the doctor failed to properly diagnose and/or treat plaintiff’s decedent’s abdominal pain. Decedent was told by the doctor he may have cancer, which, if not treated, could be fatal within 6 to 12 months. The doctor set up an appointment for plaintiff’s decedent with a specialist.  Before seeing the specialist, plaintiff’s decedent committed suicide. The Third Department determined plaintiff’s decedent’s suicide was not a foreseeable consequence of the actions ascribed to the doctor:

“An intervening act will be deemed a superseding cause and will serve to relieve [a] defendant of liability when the act is of such an extraordinary nature or so attenuates [the] defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” … . Applying this rule to a person’s intentional act of taking his or her own life, negligent conduct can only support liability for another person’s suicide under certain circumstances and where suicide is a foreseeable consequence of such conduct … . Here, Skezas did not practice psychiatry, decedent was not confined to Skezas’ care and Skezas did not advise decedent to commit suicide. The possibility that decedent would choose to take his own life in the absence of any actual terminal cancer diagnosis and rather than taking advantage of the second medical opinion — regarding a diagnosis and/or pain management — from the specialist that Skezas had secured for decedent is not a foreseeable consequence of the alleged negligent acts … . Stein v Kendal At Ithaca, 2015 NY Slip Op 05246, 3rd Dept 6-18-15

 

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Signed Consent Form Precluded Cause of Action for Assault and Battery (Re: a Hysterectomy)—Defendant Demonstrated the Allegation Plaintiff Did Not Consent to the Hysterectomy Was “Not a Fact At All”–Question of Fact Raised Re: the “Lack of Informed Consent” Cause of Action

The Second Department, over a partial concurrence/dissent, determined defendant was entitled to dismissal of the assault and battery cause of action, which was based on the allegation a hysterectomy was performed without plaintiff’s consent.  The evidence however demonstrated plaintiff signed a consent form, and thereby demonstrated that the “without consent” factual allegation was “not a fact at all.”  Plaintiff did, however raise a question of fact concerning the “lack of informed consent” cause of action. The court explained the elements of assault and battery in this context, the elements of a “lack of informed consent” cause of action, as well as how to handle a motion to dismiss for failure to state a cause of action which is accompanied by evidentiary submissions:

“When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . . If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one . . . [The motion] must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” … .

“To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact'” … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature” … . Here, the evidence in the record upon which the Supreme Court relied established that “a material fact as claimed by the plaintiff” was “not a fact at all” … . Notwithstanding the plaintiff’s allegations and testimony that she never gave permission for the performance of a hysterectomy, the signed consent form clearly authorized such a procedure, and she admitted that she signed the consent form. Therefore, dismissal of the assault and battery cause of action was proper … .

“To succeed in a medical malpractice cause of action premised on lack of informed consent, a plaintiff must demonstrate that (1) the practitioner failed to disclose the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed and (2) a reasonable person in the plaintiff’s position, fully informed, would have elected not to undergo the procedure or treatment (see Public Health Law § 2805-d [1], [3])…). Here the plaintiff’s deposition testimony indicates that she was not fully advised of the risks, benefits, and alternatives to the procedure or treatment, including the fact that one of the risks was a total hysterectomy and/or perforation of the bowel, nor was it established as a matter of law that if the plaintiff received full disclosure, she still would have consented to the procedure. Since the defendants’ submissions included the plaintiff’s deposition testimony, they failed to establish, prima facie, that there were no triable issues of fact with respect to the cause of action alleging lack of informed consent … . Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging lack of informed consent. Thaw v North Shore Univ. Hosp., 2015 NY Slip Op 05173, 2nd Dept 6-17-15

 

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