Orphan v. Pilnik
Orphan v. Pilnik
Opinion of the Court
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs.
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 plaintiffs position, fully informed, would have elected not to undergo the procedure or treatment (see Public Health Law § 2805-d [1], [3]). Expert medical testimony is required to prove the insufficiency of the information disclosed to the plaintiff (CPLR 4401-a).
On this appeal, the sole remaining cause of action alleges that plaintiff did not give informed consent to a procedure to remove a suspicious mass from her breast, because she was not made aware that the procedure would leave a 6.5 centimeter scar. The remaining defendant—the doctor who performed the procedure—moved for summary judgment dismissing the complaint. Because plaintiff does not dispute that defendant established his prima facie entitlement to judgment as a matter of law, the only issue remaining is whether plaintiff, in opposition to the motion, demonstrated the existence of triable issues of fact (see Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320 [2009]).
In opposition to the motion for summary judgment, plaintiff submitted her own affidavit and the affirmation of her medical
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
Order affirmed, with costs, in a memorandum.
Reference
- Full Case Name
- Joan Orphan v. Samuel Pilnik, M.D.
- Cited By
- 46 cases
- Status
- Published