Second Department Reverses and Orders A New Trial For Plaintiffs Despite Their Lack of Objection to Jury Charge

In Figueroa-Burgos v. Bieniewicz, the plaintiffs commenced an action against the defendant for lack of informed consent regarding the plaintiff's breast-reduction surgery.  The jury found in favor of the defendant and the plaintiffs appealed.  The jury was charged that the defendant had a duty to inform the plaintiff of alternatives to surgery and also that the defendant had a duty to inform the plaintiff of the risks of surgery.  The jury was asked to determine if the defendant departed from good and accepted medical practice by failing to provide appropriate information to the plaintiff and, if so, whether such departure was a proximate cause of the plaintiff's alleged injury.  The plaintiffs did not object to the jury charge or verdict sheet.

On appeal, the Second Department nevertheless considered the unpreserved objection that the jury was not properly charged with the standard for lack of informed consent.  The Court found that the jury was not properly instructed on the three elements of lack of informed consent: (1) that the defendant failed to disclose alternatives to surgery and failed to inform the patient of reasonably foreseeable risks that a reasonable practitioner would have disclosed under the circumstances; (2) that a reasonably prudent patient would not have undergone surgery if she had been fully informed; and (3) the lack of informed consent is a proximate cause of the injury.  Here, the jury was only asked to decide if two of the three elements existed, so the Second Department reversed the judgment and remanded the matter for a new trial on lack of informed consent.