Lack of Informed Consent

Published on: May 14, 2022

New York Court Discusses Proving Liability for Failure to Obtain Informed Consent

It is well established under New York law that a doctor must obtain a patient’s informed consent prior to performing a procedure. If they fail to do so and a patient subsequently suffers harm, they may be liable for medical malpractice. Recently, a New York court discussed what a plaintiff must prove to establish liability due to the failure to obtain informed consent in a case arising out of complications following an appendectomy. If you were injured following a negligently performed surgery, it is wise to contact a Syracuse medical malpractice lawyer to discuss your rights as soon as possible.

The Facts of the Case

It is reported that the plaintiff presented to the emergency department of the defendant’s hospital with complaints of abdominal pain. He was subsequently diagnosed with appendicitis and underwent an appendectomy. He later had to undergo a second surgery. He suffered complications, after which he filed a lawsuit against the defendant, alleging that the surgeon’s failure to obtain his informed consent and negligent performance of the surgery constituted medical malpractice. The defendant moved for dismissal via summary judgment, and the court granted the motion. The defendant appealed.

Proving Liability for Failure to Obtain Informed Consent

On appeal, the appellate court affirmed the trial court ruling. First, the appellate court noted that the plaintiff’s medical expert, who was an internist, was not qualified to opine on the issue of whether the surgeon departed from the accepted standard of medical care in the applicable community when he performed the plaintiff’s surgeries. Specifically, the court stated that the plaintiff’s expert did not demonstrate any familiarity with abdominal surgery in particular or surgery in general. Continue reading

Published on: March 7, 2022

New York Court Discusses the Evidence Needed to Support a Lack of Informed Consent Claim

by DeFrancisco & Falgiatano

Typically, the treatments offered for chronic back pain carry some degree of risk. While the benefits of such care often exceed the potential side effects, a patient must be adequately advised of the complications that may arise following a treatment in order to make a fully educated decision. If a doctor fails to obtain a patient’s informed consent before administering care and the patient suffers harm as a result of the omission, the doctor may be liable for medical malpractice. Recently, in a ruling issued in a New York surgical malpractice case, the court explained what evidence a plaintiff must offer to sustain a lack of informed consent claim. If you were harmed by a physician’s failure to advise you of the risks associated with a procedure, you may be owed damages, and you should speak to a Syracuse medical malpractice lawyer as soon as possible.

The Plaintiff’s Care

It is alleged that the plaintiff suffered from chronic back pain. She sought treatment from the defendant, who recommended that she undergo the surgical implantation of a paddle lead stimulator in her spine to alleviate her symptoms. The defendant performed the procedure, but it did not diminish the plaintiff’s pain; instead, her symptoms increased after the surgery.

It is reported that the plaintiff then filed a lawsuit against the defendant asserting claims of medical malpractice and lack of informed consent. The defendant moved for summary judgment on both claims. The court initially granted the motion as to the medical malpractice claim but denied it as to the lack of informed consent claim. Following additional discovery, the defendant renewed his motion to dismiss the lack of informed consent claim. The court granted his motion, and the plaintiff appealed. Continue reading

Published on: April 21, 2021

New York Court Discusses Proof Needed to Demonstrate Lack of Informed Consent

by DeFrancisco & Falgiatano

Generally, before a surgical procedure, a physician will explain the risks, benefits, and potential side effects to the patient before obtaining his or her consent to proceed. If a doctor neglects to, though, and the patient subsequently suffers harm, there may be grounds to pursue a claim for lack of informed consent. Recently, a New York court issued an opinion discussing a plaintiff’s burden of proof in a lack of informed consent claim in an orthopedic malpractice case. If you were injured by a doctor’s failure to obtain your informed consent prior to surgery, you might be owed damages, and you should speak to a seasoned Syracuse medical malpractice lawyer to determine your rights.

The Plaintiff’s Harm

Allegedly, the defendant performed knee surgery on the plaintiff. She subsequently developed drop foot due to a metal fragment that was left by her knee. She filed a lawsuit against the defendant, alleging lack of informed consent and medical malpractice claims. The defendant moved for dismissal via summary judgment, but the court denied his motion. The defendant then appealed.

The Burden of Proof in Lack of Informed Consent Claims

On appeal, the court explained that while the defendant established a prima facie right to judgment as a matter of law on the medical malpractice claim, the plaintiff set forth an expert affidavit in opposition of the defendant’s motion that adequately demonstrated a material dispute of fact existed that required a trial. Thus, the trial court ruling as to the medical malpractice claim was affirmed. Continue reading