Johnson v. Staten Island Med. Group

• Decision Date: 01 March 2011
• Citation: 918 N.Y.S.2d 132,82 A.D.3d 708
• Parties: Yamda JOHNSON, appellant, v. STATEN ISLAND MEDICAL GROUP, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 132

82 A.D.3d 708

Yamda JOHNSON, appellant,

v.STATEN ISLAND MEDICAL GROUP, et al., respondents, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

March 1, 2011.

Michael N. David, New York, N.Y., for appellant.

Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for respondents Staten Island Medical Group and Lance Jung.

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, RANDALL T. ENG, and SANDRA L. SGROI, JJ.

In an action to recover damages for medical malpractice and lack of informed consent the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated December 17, 2009, as, upon reargument, in effect, vacated a prior determination in an order of the same court dated July 24, 2009, denying that branch of the motion of the defendants Staten Island Medical Group, Lance Jung, and Nicole Borger which was for summary judgment dismissing the cause of action based upon an alleged lack of informed consent insofar as asserted against the defendant Lance Jung, and thereupon granted that branch of the motion.

ORDERED that the order dated December 17, 2009, is affirmed insofar as appealed from, with costs to the defendants Staten Island Medical Group and Lance Jung.

Public Health Law § 2805-d(1) defines lack of informed consent as "the failure of the person providing the professional treatment ... to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation." To establish a cause of action sounding in lack of informed consent, a plaintiff must establish that "a reasonably prudent person in the patient's position would not have undergone the treatment ... if he [or she] had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought" (Public Health Law § 2805-d[3]; see Thompson v. Orner, 36 A.D.3d 791, 828 N.Y.S.2d 509; Manning v. Brookhaven Mem. Hosp. Med. Ctr., 11 A.D.3d 518, 782 N.Y.S.2d 833).

Here, the defendants Staten Island Medical Group, Lance Jung, and Nicole Borger (hereinafter collectively the defendants) established their prima facie entitlement to judgment as a matter of law dismissing the cause of action based upon an alleged lack of informed consent insofar as asserted against the defendant Lance Jung by demonstrating that the plaintiff signed a consent form which stated, inter alia,that she had been informed about the proposed surgical procedure, and the alternatives thereto, as well as the reasonably foreseeable risks and benefits. In addition, Jung testified at his deposition that he informed the plaintiff regarding these issues during a pre-operative discussion with her ( see Ortaglia v. Scanlon, 35 A.D.3d 421, 825 N.Y.S.2d 256; Ericson v. Palleschi, 23 A.D.3d 608, 806 N.Y.S.2d 667). Furtherm...