Published on:

New York Court Discusses Elements of a Lack of Informed Consent Claim

In New York, there are many acts and omissions that may constitute grounds for a medical malpractice claim. For example, if a doctor neglects to adequately inform a patient regarding the risks and potential consequences of a procedure, he or she may be liable for failing to obtain the patient’s informed consent. In some instances, though, the complete failure to get permission from a patient prior to performing surgery may constitute a tort other than malpractice. This was shown in a recent New York surgical malpractice case in which the court discussed the elements of a lack of informed consent claim as opposed to a claim for assault and battery. If you suffered harm because of a surgical error, you should speak to a committed Syracuse surgical malpractice attorney as soon as possible to evaluate what claims you may be able to assert in a civil lawsuit.

Factual and Procedural History

It is reported that the plaintiff underwent a surgical repair of a hernia that was performed by the defendant doctor at the defendant hospital. After the procedure, the plaintiff suffered injuries and complications. He then filed a medical malpractice lawsuit against the defendants alleging, in part, that the defendant doctor failed to obtain his informed consent by failing to advise him of the potential consequences of the surgery, and performing procedures that the plaintiff did not agree to undergo. The defendant filed a motion to dismiss, arguing that the plaintiff’s claims sounded in assault and battery rather than medical negligence. The trial court denied the defendant’s motion, and he appealed.

Elements of a Lack of Informed Consent Claim

Pursuant to New York law, a medical professional may be deemed liable for an intentional act of battery, instead of medical malpractice, if the professional performs a procedure for which the plaintiff did not provide any consent at all. If a surgeon merely exceeds the scope of the consent provided by a plaintiff, however, any acts that fall outside of the permission granted by the plaintiff may form the basis of a valid lack of informed consent claim.

In the subject case, as pointed out by the defendant, the plaintiff pleaded that the defendant failed to obtain the plaintiff’s consent prior to performing certain acts. The court noted, though, that the plaintiff also pleaded in the alternative that the defendant failed to remember the scope of the plaintiff’s consent prior to performing surgery, and therefore exceeded the scope of the consent. As such, the court affirmed the trial court ruling.

Meet with a Seasoned Attorney in Syracuse

If you suffered an illness or injury due to a surgeon’s failure to inform you of the potential risks of your procedure, you may be owed compensation and should meet with an attorney to discuss your case. The seasoned Syracuse surgical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers are adept at proving liability in claims against health care providers, and if you engage our services, we will work tirelessly to help you seek the best outcome available under the facts of your case. You can reach us at 315-479-9000 or through the online form to schedule a conference.

Justia Lawyer Rating
Contact Information