Appellate Division of the Supreme Court of New York, 2000

Berger v. Becker

Appellate Division of the Supreme Court of New York · Decided May 30, 2000

272 A.D.2d 565; 709 N.Y.S.2d 418; 2000 N.Y. App. Div. LEXIS 6030

Cases that cite this one

32 later published cases cite this decision. The 25 that cite it most often are listed here.

Gotlin v. Lederman (District Court, E.D. New York 2009)
Wall v. Reliance Standard Life Insurance Company (District Court, District of Columbia 2021)
Pieter v. Polin (Appellate Division of the Supreme Court of New York 2017)
Kawache v. United States (2d Cir. 2012)
K.R. ex rel. Perez v. United States (District Court, E.D. New York 2012)
Deadwyler v. North Shore University Hospital at Plainview (Appellate Division of the Supreme Court of New York 2008)
Texter v. Middletown Dialysis Center, Inc. (Appellate Division of the Supreme Court of New York 2005)
Pace v. Jakus (Appellate Division of the Supreme Court of New York 2002)
Roseingrave v. Massapequa General Hospital (Appellate Division of the Supreme Court of New York 2002)
Dray v. Staten Is. Univ. Hosp. (Appellate Division of the Supreme Court of New York 2018)
Healy v. Finz & Finz, P.C. (Appellate Division of the Supreme Court of New York 2011)
Ruggiero v. State of New York (N.Y. Ct. Cl. 2010)
Dunn v. Khan (Appellate Division of the Supreme Court of New York 2009)
Lampach v. University Hospital (Appellate Division of the Supreme Court of New York 2009)
Langan v. St. Vincent's Hospital (Appellate Division of the Supreme Court of New York 2009)
Dockery v. Sprecher (Appellate Division of the Supreme Court of New York 2009)
Nichols v. Stamer (Appellate Division of the Supreme Court of New York 2008)
Eliopoulos v. Healthcheck, Inc. (Appellate Division of the Supreme Court of New York 2008)
Bryan v. Staten Island University Hospital (Appellate Division of the Supreme Court of New York 2008)
Zak v. Brookhaven Memorial Hospital Medical Center (Appellate Division of the Supreme Court of New York 2008)
Sampson v. Contillo (Appellate Division of the Supreme Court of New York 2008)
Thompson v. Orner (Appellate Division of the Supreme Court of New York 2007)
Harper v. Findling (Appellate Division of the Supreme Court of New York 2007)
Barila v. Comprehensive Pain Care (Appellate Division of the Supreme Court of New York 2007)
Rosen v. John J. Foley Skilled Nursing Facility (Appellate Division of the Supreme Court of New York 2007)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Rudolph, J.), dated May 24, 1999, which, upon the granting of the defendant’s motion for judgment in his favor as a matter of law made at the close of the plaintiff’s case, is in favor of the defendant and against him dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach of the standard was the proximate cause of injury (see, Gibson v D’Amico, 97 AD2d 905; see also, Gross v Friedman, 138 AD2d 571, affd 73 NY2d 721; Kelly v Lieber, 261 AD2d 441). To sustain this burden, a plaintiff must present expert testimony that the defendant’s conduct constituted a deviation from the requisite standard of care (see, Reid v Rye Ridge Orthopedic Assocs., 268 AD2d 574; Lasek v Nachtigall, 189 AD2d 749; Gibson v D'Amico, supra). Here, viewing the evidence in the light *566most favorable to the plaintiff and affording him the benefit of every favorable inference (see, CPLR 4401; Ryan v Kassay, 267 AD2d 222; Kelly v Lieber, supra), he failed to establish a prima facie case of malpractice. The plaintiff presented no expert testimony to demonstrate that the defendant departed from an accepted standard of care in prescribing the medication “Coumadin” to reduce the plaintiff’s risk of suffering a stroke.

Furthermore, the plaintiff’s cause of action to recover damages based on lack of informed consent was properly dismissed because he failed to offer expert testimony as required by CPLR 4401-a, to establish the qualitative insufficiency of his consent (see, Lopez v Sheskier, 262 AD2d 536; Storch v LaGuardia Med. Group, 209 AD2d 689; Gonzalez v Moscarella, 142 AD2d 550), and to prove that a reasonably prudent person in his position would not have taken the prescribed drug if fully informed of its potential risks (see, Innucci v Bauersachs, 201 AD2d 460; Evans v Holleran, 198 AD2d 472; Hylick v Halweil, 112 AD2d 400). Mangano, P. J., Thompson, Krausman and Feuerstein, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.