Messina v. Matarasso

• Decision Date: 12 July 2001
• Citation: 729 N.Y.S.2d 4,284 A.D.2d 32
• Parties: (A.D. 1 Dept. 2001) Wanda Messina, Plaintiff-Appellant-Respondent, v. Alan Matarasso, M.D., F.A.C.S., P.C., et al., Defendants-Respondents-Appellants. 4030 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 4

729 N.Y.S.2d 4 (A.D. 1 Dept. 2001)

Wanda Messina, Plaintiff-Appellant-Respondent, v. Alan Matarasso, M.D., F.A.C.S., P.C., et al., Defendants-Respondents-Appellants.

4030

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

July 12, 2001

Cross appeals from an order of the Supreme Court, New York County (Helen Freedman, J.), entered February 17, 2000, which, inter alia, dismissed the complaint because the action is time-barred.

Lita Beth Torres, of counsel (Steven G. Storch, on the brief, Storch Amini & Munves, P.C., attorneys) for plaintiff-appellant-respondent.

Nancy A. Breslow, of counsel (Martin, Clearwater & Bell, attorneys) for defendants-respondents-appellants.

Joseph P. Sullivan, P.J., Angela M. Mazzarelli, Betty Weinberg Ellerin, Alfred D. Lerner, John T. Buckley, JJ.

SULLIVAN, P.J.

This appeal presents the issue of whether this action, which seeks damages for the negligent performance of a medical procedure, allegedly conducted without plaintiff's authorization or informed consent, sounds in battery, subject to a one-year Statute of Limitations (CPLR 215[3]), or medical malpractice, subject to a two-and-one-half year Statute of Limitations (CPLR 214-a). Concededly, the action was not commenced within one year of its accrual, although it was commenced within the Statute of Limitations applicable in the circumstances presented to a medical malpractice claim.

Plaintiff alleges that on August 16, 1990, during cosmetic facial surgery performed under general anesthesia, defendant Matarasso performed a procedure on her breasts without her consent. According to plaintiff, when she awakened from the surgery, she experienced pain in her breasts. The next day, when she saw Dr. Matarasso for a follow-up examination, he asked her if she had "noticed" her breasts and informed her that he had performed closed capsulotomies¹ on both breasts. Prior to the facial surgery, plaintiff contends, she was suffering from hardness of her breasts resulting from silicon implants she had received in 1974. As a result of the capsulotomies, plaintiff alleges, the implants ruptured and silicon leaked out into her breasts and surrounding tissue, causing serious injury. At her deposition plaintiff testified that, prior to the August 16, 1990 surgery, she had never discussed her breast implants with Dr. Matarasso, whose deposition testimony was to the same effect. Dr. Matarasso denies that he either touched or performed any procedure on plaintiff's breasts during the course of the August 16, 1990 surgery.²

Defendant Matarasso, sued individually and as a professional corporation, moved for summary judgment dismissing the complaint or, in the alternative, dismissal of the complaint on the ground that it is time-barred. The IAS court denied summary judgment, finding a triable issue as to whether the procedure was performed, but dismissed the complaint, concluding that the one-year Statute of Limitations for battery applies to plaintiff's action.

A claim for battery must be commenced within one year (CPLR § 215[3]), while a claim alleging medical malpractice, insofar as relevant, must be brought within 2 1/2 years "of the act * * * complained of" (CPLR 214-a). Under traditional tort law, medical treatment beyond the scope of a patient's consent was considered an intentional tort or a species of assault and battery. (See, Schloendorff v. Society of New York Hosp., 211 NY 125; Rigie v. Goldman, 148 A.D.2d 23, 28; Dries v. Gregor, 72 A.D.2d 231, 235.) The modern approach, however, views the failure to obtain the informed consent of a patient as "a form of medical malpractice based on negligence." (Spinosa v. Weinstein, 168 A.D.2d 32, 41, citing, e.g., Rigie v. Goldman, supra, 148 A.D.2d at 28-29; Oates v. New York Hosp., 131 A.D.2d 368.)

This approach is grounded in common sense. As the California Supreme Court noted in Cobbs v. Grant (8 Cal3d 229, 240), when the doctor obtains consent to a certain procedure and an undisclosed complication arises, what occurs is not necessarily an intentional deviation from the consent given but rather a deviation from the duty to disclose the information that a competent physician would have provided. On the other hand, when a patient agrees to treatment for one condition and is subjected to a procedure related to a completely different condition, there can be no question but that the deviation from the consent given was intentional.

Viewing the failure to make a full disclosure of the risks of the procedure and the alternate forms of treatment as negligence rather than as a battery, it should also be noted, is more favorable to the health care provider in terms of imposing a greater burden of proof on the plaintiff to establish liability. (Dobbs, The Law of Torts, § 250, at 654 [2000]; see also, Cobbs v Grant, supra, 8 Cal3d at 240.) Under a negligence theory, a plaintiff must prove a failure to disclose a reasonably foreseeable risk, that a reasonable person, so informed, would have opted against the procedure, an actual injury and that the procedure was the proximate cause of the injury. (See, id.; see also, Eppel v Fredericks 203 A.D.2d 152; Public Health Law § 2805-d.) To establish a battery, however, it need only be shown that the defendant made bodily contact with the plaintiff and that the contact was either offensive in nature (see, Zgraggen v Wilsey, 200 A.D.2d 818) or without his or her consent (see, id.; Villanueva v Comparetto, 180 A.D.2d 627, 629).

As the IAS court aptly noted, citing Oates v. New York Hosp., supra (131 A.D.2d at 369), "[c]ases where a procedure is completely unauthorized... must be distinguished from cases where a patient consents to a procedure without being fully aware of the risks and consequences involved." (See also, Laskowitz v. CIBA Vision Corp., 215 A.D.2d 25, 28; Rigie v. Goldman, supra, 148 A.D.2d at 28; Tom v. Lenox Hill Hosp., 165 Misc.2d 313, 315.) This is precisely such a case. Plaintiff does not claim that defendant Matarasso failed to inform her of the risks of the procedure or that he rendered medical treatment beyond the scope of her consent. (Cf., Dries v Gregor, supra; Oates v New York Hosp., supra.) Her claim, rather, is that he performed a procedure upon her with no consent at all. This is clearly an allegation of intentional conduct rather than conduct that can be construed as a deviation from the reasonable care...