Monday, November 29, 2010

Court Of Appeals Leaves Some Uncertainty With Informed Consent Decision

In Orphan v. Pilnik, the plaintiff brought a lack of informed consent claim alleging that she was not informed that a procedure to remove a suspicious mass from her breast would have left a 6.5 cm scar.  A three-two decision in the First Department presented two issues to the Court of Appeals: (1) whether the plaintiff is required to present expert testimony on the issue of whether a reasonable person in the plaintiff’s position, fully informed, would have elected not to undergo the procedure or treatment; and (2) whether a plaintiff’s subjective statement that she would have sought a second opinion was sufficient to raise an issue of fact for the jury to assess whether a reasonable person, fully informed, would have gone through with the procedure.  Ultimately the Court of Appeals did not directly address either issue. 

To establish a claim for lack of informed consent, a plaintiff must demonstrate that (1) the defendant failed to disclose the risks, benefits and alternatives that a reasonable practitioner would have disclosed and (2) a reasonable person in the plaintiff's position, fully informed, would have elected not to undergo the treatment. The Court seemingly addressing the first question presented stated "Expert testimony is required to prove the insufficiency of the information disclosed to the plaintiff" and made no reference to whether expert testimony is required as to the second element of an informed consent claim.  On that claim the Court held that “the evidence offered by the plaintiff did not establish that a fully informed reasonable person would have declined the procedure.  Indeed, plaintiff herself alleged only that, if fully informed, she would have sought second opinion.”  Taking the decision as a whole, therefore, it appears the Court of Appeals indirectly held that expert testimony was not required, but that the plaintiff must definitively testify that he/she would not have undergone the procedure if fully informed of the risks in order to survive a motion for summary judgment.     

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