In order to establish a lack of informed consent claim in a medical malpractice action, a plaintiff needs to prove (1) that the medical practitioner failed to disclose the material risks, benefits and alternatives to the surgery, which would have been disclosed by a reasonable medical practitioner and (2) that a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed (Public Health Law § 2805-d). Furthermore, CPLR 4401-a requires medical malpractice actions based solely on lack of informed consent to be supported by expert medical testimony "in support of the alleged qualitative insufficiency of the consent."
In Gray v. Williams, the defendant claimed that CPLR 4401-a required expert testimony as to both parts of the informed consent analysis. The Fourth Department disagreed holding that "expert testimony concerning what a reasonable person would have done in plaintiff’s position is not necessary to maintain a cause of action premised upon lack of informed consent." This holding is consistent with its prior decisions, as well as with the First and Third Departments. The Second Department's position on this issue, however, is unclear.
In Faulknor v. Shnayerson (273 A.D.2d 271 ), the Second Department treated it as though expert testimony was necessary for both parts of the informed consent test. There, the Court held "a case of malpractice based on lack of informed consent may not be submitted to a jury in the absence of expert medical testimony to support the qualitative insufficiency of the consent i.e., that a reasonably prudent person in the patient’s position would not have undergone the treatment if fully informed." While there has been case law at the trial level that recognizes the apparent disparity between the Departments (Tullo v. Tartack, 325/98, 2002 WL 31925590 [N.Y. Sup. Ct. July 24, 2002]), the Second Department has never subsequently relied on Faulknor for this proposition. In addition, some subsequent cases seem to imply that the Second Department does not require expert testimony on the second prong of the analysis, but make no mention of Faulknor (see e.g., Sarwan v. Portnoy, 51 A.D.3d 655 [2nd Dept. 2008]). Thus, subsequent cases will have to clarify where the Second Department falls on this issue.