Underlying Facts
Informed Consent Claim Not Proper In Child Birth Malpractice Case: Plaintiffs are the parents of an infant who died shortly after birth, and they commenced their New York medical malpractice action seeking to recover damages for emotional injuries that they allegedly sustained as a result of defendants’ negligence in providing medical treatment during plaintiff Morgan Jamie Dunbar’s labor and
delivery of the child.
Plaintiffs appealed from an order that granted those parts of the motions of all defendants-respondents except Gil Michael Farkash, M.D. and Katharine V. Morrison, M.D., PLLC (collectively, defendants) seeking to dismiss plaintiffs’ claims sounding in ordinary negligence and their cause of action for lack of informed consent against them.
The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department (“New York Appellate Court”) held in its Memorandum and Order entered on June 9, 2023: “With respect to the cause of action for medical malpractice based on lack of informed consent, we conclude that the court properly granted those parts of defendants’ motions seeking to dismiss that cause of action against them. “The right of action to recover for medical, dental or podiatric malpractice based on a lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body” (Public Health Law § 2805-d [2]). Here, we conclude that plaintiffs failed to state a cause of action for lack of informed consent because, as pleaded in the operative complaint, “[t]he injuries allegedly sustained . . . were not the result of an invasive procedure, but instead were alleged to have been the result of a negligent failure to undertake or negligent postponing of such procedure”—i.e., defendants’ alleged delay in ordering a cesarean section—during an ongoing emergency situation.”
The New York Appellate Court further held: “Contrary to plaintiffs’ contention, Supreme Court properly granted those parts of defendants’ motions seeking to dismiss the ordinary negligence claims asserted against them in the fourth amended complaint. Specifically, we conclude that the first three causes of action “sound[] in medical malpractice rather than ordinary negligence [because] the challenged conduct ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’ to a particular patient” … Additionally, the first through third causes of action do not sound in ordinary negligence inasmuch as the allegations in the fourth amended complaint with respect to those causes of action involve matters “not within the ordinary experience and knowledge of laypersons” … and thus the parties would be required to proffer expert testimony to establish the relevant standard of care concerning the challenged conduct.”
Source Dunbar v. Women & Children’s Hospital of Buffalo, 191 CA 22-01713.
If you or your baby suffered injury (or worse) during child birth in New York or in another U.S. state, you should promptly find a New York child birth malpractice lawyer, or a child birth malpractice lawyer in your state, who may investigate your child birth claim for you and represent you and your child in a child birth medical malpractice case, if appropriate.
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