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.     

Second Department Denies Summary Judgment On Principle Of Ostensible Or Apparent Agency

In Alvarado v. Beth Israel Medical Center, the plaintiff underwent a procedure to remove gallstones at Beth Israel Medical Center on September 14, 1999.  Dr. Lo, an employee of hospital, performed the procedure.  On September 17, 1999, the plaintiff underwent a second procedure at the hospital which was performed by Dr. Seth Cohen, an independent contractor who had been dismissed from the action on statute of limitations grounds. A third procedure was performed by Dr. Lo on the same day, following the procedure performed by Dr. Cohen.

The plaintiff and her husband commenced this action against, among others, Dr. Lo and the hospital, alleging, among other things, that the defendants had committed malpractice by perforating the plaintiff's intestine during the September 14, 1999, procedure, and failing to timely diagnose and treat this perforation. In November 2008 the defendants moved for summary judgment dismissing the complaint, presenting evidence that the perforation of the plaintiff's intestine did not occur during the September 14, 1999, procedure, but occurred during the September 17, 1999, procedure performed by Dr. Cohen. The plaintiffs cross-moved for leave to amend their bill of particulars to add new theories of malpractice, including an allegation that the defendants committed malpractice by failing to remove the entire gallbladder on September 14, 1999, which created an increased risk of a bile duct leak, creating the necessity for the first September 17, 1999, surgery, and an allegation that Dr. Lo performed an unnecessary and/or improper subsequent surgery on September 17, 1999.  

The trial court denied the hospital's motion and granted the plaintiffs' cross-motion.  The Second Department affirmed.  The Court held that leave to amend should be freely given and the plaintiffs presented a question of fact as to whether Dr. Lo caused plaintiff's injuries.  The Court also held that even though Dr. Cohen was an independent contractor for whom hospital's generally are not liable, the plaintiff had raised a question of fact as to whether the hospital could be vicariously liable under a theory of ostensible or apparent agency.    

As the Second Department explained in Sampson v. Contillo, "'[i]n order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent's skill.' Thus, '[t]here are two elements to such a claim of apparent or ostensible agency.'  'To establish the 'holding out' element, the misleading words or conduct must be attributable to the principal.' 'To establish the 'reliance' element, the third party must accept the agent's services and submit to the agent's care in reliance on the belief that the agent was an employee of the principal' 'In the context of a medical malpractice action, the patient must have reasonably believed that the physicians treating him or her were provided by the hospital or acted on the hospital's behalf.' 'In the context of evaluating whether a doctor is the apparent agent of a hospital, a court should consider all 'attendant circumstances . . . to determine whether the patient could properly have believed that the physician was provided by the hospital' " (internal citations omitted).

Second Department Reaffirms Limit On Wrongful LIfe Claims

In Kubik v. Erhart, the plaintiffs alleged that the defendants committed medical malpractice in failing to properly diagnose their child's condition in utero resulting in their failure to terminate the pregnancy.  The Second Department reaffirmed their prior holding in Mickens v. LaSala, that damages are limited for wrongful life claims to the parents' personal pecuniary loss and that expenses covered by other sources, such as private insurance or public programs, are not recoverable.  The plaintiffs, however, raised a triable issue of fact as to whether the child's extraordinary special needs caused them to incur extraordinary expenses, such as increased utility bills, and the cost of special equipment, which were not reimbursed by other sources.  

Second Department Reduces Pain And Suffering Award In Wrongful Death Case

In Dowd v. New York City Transit Authority, the defendant's bus struck the plaintiff's decedent, who was on the sidewalk.  The rear wheels of the bus ran over the decedent, and the bus then moved forward and ran over the decedent a second time.  The decedent was still conscious and complaining of pain when paramedics arrived on the scene and transported her to the hospital.  Eighteen minutes after the accident, the decedent went into cardiac arrest. She was revived and her vital signs returned; but she subsequently went into cardiac arrest a second time, and was pronounced dead an hour and a half after the accident.  The Appellate Division reduced the jury's $1.75 million pain and suffering award to $1.2 million.  

Recent Pain and Suffering Award for PTSD and Hand Injury

In Figueroa v. City of New York, the then 13 year-old plaintiff was arrested by police during an investigatory stop. The arresting officer pointed his gun at the plaintiff, smacked him, hit him with the gun and stomped on him. The plaintiff alleged PTSD with nightmares, flashbacks, anxiety, fear of police and anger. The plaintiff also alleged a right hand injury with diminished ability to use the hand. The jury awarded plaintiff $2,500,000 for 14 years of past pain and suffering. The First Department reduced the award to $1,250,000.

Ministerial Task of Obtaining Consent does not Transfer Duty to Hospital

In Sela v. Katz, the plaintiff underwent arthroscopic surgery on her knee at a Good Samaritan Hospital facility.  The surgery was performed by the plaintiff's private physician, Dr. Katz.  The plaintiff brought a medical malpractice action against Dr. Katz and Good Samaritan Hospital claiming that he developed RSD as a result of excessive pressure applied during the surgery.  The Supreme Court granted Good Samaritan's motion for summary judgment and the Second Department affirmed.  The Court held that a hospital employee's ministerial task of obtaining consent does not transfer the physician's duty to obtain a patient's informed consent to the Hospital.  Furthermore, Good Samaritan was shielded from liability because it did not employ Dr. Katz; Dr. Katz's orders were not clearly contraindicated; and the Hospital's staff did not depart from good and accepted standards of practice.     

Second Department Dismisses Negligent Spoliation Cause of Action

In Hillman v. Sinha, the plaintiff's wife advised the defendant in 2007 that she was unhappy with her husband's care and that her husband would no longer be a patient.  The plaintiff's medical records were subsequently destroyed when the defendant converted the original medical records to electronic format.  In 2008, the plaintiff commenced a medical malpractice action against the defendant and also asserted a separate cause of action for negligent spoliation of evidence.  The defendant then moved to dismiss the cause of action for negligent spoliation. The Supreme Court denied the motion, but the Appellate Division reversed.  The Court, extending the Court of Appeals' holding in Oretga v. City of New York (9 N.Y.3d 69, 73), found that permitting such an action would require resort to "hypothetical theories or speculative assumptions about the nature of the harm incurred or the extent of plaintiff's damages."  The court, also relying on Ortega, held that existing remedies were sufficient to deter such conduct.