Laskowitz v. CIBA Vision Corp.

• Decision Date: 23 October 1995
• Citation: 215 A.D.2d 25,632 N.Y.S.2d 845
• Parties: Tracy H. LASKOWITZ, Appellant, v. CIBA VISION CORPORATION, Defendant, Joseph M. Kurtz, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 845

632 N.Y.S.2d 845

215 A.D.2d 25

Tracy H. LASKOWITZ, Appellant, v. CIBA VISION CORPORATION, Defendant Joseph M. Kurtz, Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 23, 1995.

Greshin, Ziegler & Pruzansky, Smithtown (Benjamin Greshin, of counsel), for appellant.

Kelly, Rode & Kelly, Mineola (John D. Kelly, Shawn P. Kelly, and Ann Willoughby, of counsel), for respondent.

Before PIZZUTO, J.P., and HART, FRIEDMANN and FLORIO, JJ.

FRIEDMANN, Justice.

On this appeal we are asked to consider whether the Legislature, by codifying in Public Health Law § 2805-d actions involving medical, dental, or podiatric malpractice based upon a lack of informed consent, repealed the common-law doctrine of informed consent as to health-care professionals not expressly included in that statute.

The plaintiff at bar suffered permanent damage to her right eye following her use of extended-wear contact lenses which had been prescribed for her by her optometrist, the defendant Joseph Kurtz. It was the plaintiff's position that the risk of sustaining an injury like hers was known to be increased among users of extended wear-contact lenses, that Kurtz should have advised her of this risk but failed to do so, and that had she known of the risk, she, like any reasonably prudent person, would not have purchased the extended-wear lenses.

In response to Kurtz's motion, the Supreme Court dismissed the plaintiff's fourth cause of action, in which she alleged that her optometrist had not obtained her informed consent before prescribing the extended-wear lenses. The court reasoned that Public Health Law § 2805-d had codified all malpractice actions based upon lack of informed consent and that, by its terms, the statute limited such causes of action to physicians, dentists, and podiatrists. Because optometrists were not named in the statute and because optometrists do not practice medicine, the court concluded that no cause of action sounding in lack of informed consent could be asserted against them (see, e.g., Boothe v. Weiss, 107 A.D.2d 730, 484 N.Y.S.2d 598; see also, Education Law §§ 6521, 7101).

At common law the doctrine of informed consent evolved in the context of personal-injury litigation, deriving from a combination of the concepts of assault and battery with those of negligence and malpractice. Normally, like most of tort law, it calls for the application of very general principles of law to very specific fact situations. A problem in informed consent arises when a physician or other therapist obtains a consent to treatment adequate to insulate him from prosecution for criminal assault and from liability in a civil assault or battery action, but when, nonetheless, the patient contends that consent would have been withheld if an adequate disclosure had been made concerning his condition as well as the potential dangers of and alternatives to the proposed procedure or therapy (see, Mem of Henry D. Shereff, Bill Jacket, L.1975, ch. 476; see also, Fogal v. Genesee Hosp., 41 A.D.2d 468, 473-474, 344 N.Y.S.2d 552). That liability may lie for failure to obtain a patient's informed consent was acknowledged by the Court of Appeals in 1967 in Fiorentino v. Wenger, 19 N.Y.2d 407, 280 N.Y.S.2d 373, 227 N.E.2d 296; see also, Flores v. Flushing Hosp. & Med. Center, 109 A.D.2d 198, 490 N.Y.S.2d 770; Murriello v. Crapotta, 51 A.D.2d 381, 382 N.Y.S.2d 513; DiRosse v. Wein, 24 A.D.2d 510, 261 N.Y.S.2d 623; Petterson v. Lynch, 59 Misc.2d 469, 299 N.Y.S.2d 244).

As outlined in the Memorandum of Henry D. Shereff (Bill Jacket, L.1975, ch. 476) a cause of action for lack of informed consent, as it has evolved in the case law, incorporates the following principles:

(1) In general, every person has a right to accept or reject any proposed therapy (see, Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 105 N.E. 92; see also, Matter of Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153).

(2) Each patient has a right to receive, and each therapist (directly or through an agent) has a concomitant duty to present, in a form comprehensible to a layman of average intelligence, such information as is or should be known to the therapist, which a reasonable person would require to form a judgment as to whether to accept or reject the proposed therapy (see, e.g., Canterbury v. Spence (D.C.Cir.), 464 F.2d 772, cert. denied 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518; Fogal v. Genesee Hosp., supra; Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1; see also, Karchmer, Informed Consent: A Plaintiff's Medical Malpractice "Wonder Drug", 31 Mo.L.Rev. 29, 41). The information communicated to the patient should include, as an irreducible minimum: diagnosis, prognosis without the proposed therapy, prognosis with the proposed therapy, significant risks and significant side effects of the proposed therapy, and alternatives available, if any.

(3) There is some traditional authority for the proposition that a therapist should have the right to withhold from a patient such information as, in the reasonable opinion of the therapist, would be injurious to the patient's mental or physical health (see, e.g., Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249; Kraus v. Spielberg, 37 Misc.2d 519, 236 N.Y.S.2d 143).

(4) There is also authority for the proposition that a patient has a right not to know. In recognition of this, any patient may waive in writing his or her right to receive any or all information (see, Cobbs v. Grant, supra; Putensen v. Clay Adams, Inc., 91 Cal.Rptr. 319, 12 Cal.App.3d 1062).

(5) Liability for lack of informed consent should be based upon damages suffered by the patient which are proximately caused by therapy that a reasonable person would have rejected had the therapist met the proper standards of disclosure. In other words, no therapist should be subject to absolute liability merely for failure to disclose--although failure to obtain any consent, express or implied, in the absence of an emergency, may still subject a therapist to absolute liability for battery. Conversely, the requirement of informed consent may not be construed to create a warranty of the accuracy or completeness of the therapist's diagnosis or prognosis (see, e.g., Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760; Cunningham v. State of New York, 10 A.D.2d 751, 197 N.Y.S.2d 542, affd. 11 N.Y.2d 808, 227 N.Y.S.2d 253, 181 N.E.2d 852; Stone v. Goodman, 241 A.D. 290, 271 N.Y.S. 500; see also, Mem of Henry D. Shereff, Bill Jacket, L.1975, ch. 476, at 4-7).

"Malpractice" is defined in Black's Law Dictionary (864 [5th ed. 1979] as the "[f]ailure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services or to those entitled to rely upon them." All of the 21 professions listed in Title VIII of the Education Law are held to comparable standards of competence (compare, e.g., Article 133 covering dentists, with the virtually identical Article 143 covering optometrists); and all are subject to claims of malpractice if and when they fall below such standards. In addition, malpractice based upon a theory of inadequate informed consent is both legally and logically cognizable in any of these licensed professions--although some professions by their natures are more susceptible than others to charges of malpractice, as well as to findings that lack of informed consent could proximately cause a plaintiff's injuries. Furthermore, it is true that certain occupations have more effective lobbying networks than others, and from time to time this disparity in influence has resulted in a greater measure of protection being accorded to some professions than to others.

In the early 1970's malpractice insurance premiums in New York State doubled and were threatening to triple. Indeed, there was even a danger that as of July 1, 1975, no malpractice insurance would be available within the State (see, e.g., 1 Bard and Marano, New York Medical Malpractice, Informed Consent, § 2.1 [1994]. In order to alleviate this malpractice insurance crisis and to rescue health care services from the perceived burdens of malpractice litigation, the Legislature reviewed various proposals, such as eliminating the doctrine of res ipsa loquitur from medical malpractice actions, shortening the Statute of Limitations for malpractice actions, revising judicial procedures for processing malpractice cases, imposing limits on malpractice awards and/or on the fees of plaintiffs' attorneys, and placing novel restrictions on the doctrine of informed consent.

In 1975 and ensuing...