The Supreme Court of the State of New York, Appellate Division, Second Judicial Department (“New York Appellate Court”) held in its decision dated March 10, 2021, “the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.”
The plaintiff alleged in her New York medical malpractice and lack of informed consent lawsuit that her gynecologist performed an Essure sterilization procedure on her on June 12, 2009 and three days later, she went to the hospital with complaints of severe chest pain and dizziness, resulting in quadruple coronary artery bypass surgery. The plaintiff alleged that the defendant’s alleged departures in connection with the Essure procedure caused and/or contributed to her cardiac decompensation and resulting hospitalization and bypass surgery.
The defendant moved for summary judgment which the trial denied, determining that the conflicting expert opinions submitted by the parties precluded summary judgment. The defendant then filed an appeal.
New York Appellate Court Opinion
In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries. To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury. In moving for summary judgment, a physician defendant must establish, prima facie, either that there was no departure or that any departure was not a proximate cause of the plaintiff’s injuries. Once a defendant has made such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician.
The New York Appellate Court stated that the defendant met his prima facie burden through the affidavit of the defendant gynecologist, who opined with a reasonable degree of medical certainty that he did not depart from the applicable standard of care, that he fully discussed with the plaintiff the risks and alternatives to the Essure procedure, and that his treatment did not contribute to the plaintiff’s injuries. However, the plaintiff’s submissions in opposition to the motion raised triable issues of fact precluding summary judgment, and summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. The experts’ disagreement presented a credibility battle between the parties’ experts, and issues of credibility are properly left to a jury for its resolution.
In the New York medical malpractice and lack of informed consent case the New York Appellate Court was deciding, the plaintiff’s expert addressed the defendant’s specific assertions made in his affidavit, set forth an explanation of his or her reasoning, and relied on specifically cited evidence in the record in concluding that the defendant should have advised the plaintiff of the less invasive alternative of a Mirena IUD and should have referred her for further testing prior to performing the Essure procedure, and that these departures contributed to the plaintiff’s injuries by exacerbating her pre-existing conditions, resulting in cardiac decompensation, hospitalization, and bypass surgery. Moreover, the plaintiff stated in her affidavit that she was not advised about alternative procedures and that she would have opted for the Mirena IUD had she been told about it.
Source Cox v. Herzog, 2021 NY Slip Op 01389.
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