Figueroa-Burgos v. Bieniewicz

135 A.D.3d 810

23 N.Y.S.3d 369

Lydia FIGUEROA–BURGOS, et al., appellants,

v.Edward J. BIENIEWICZ, respondent, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 20, 2016.

Asher & Associates, P.C., New York, N.Y. (Robert J. Poblete of counsel), for appellants.

Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Patrick J. Engle and Vincent Petrozzo of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and BETSY BARROS, JJ.

In an action to recover damages for medical malpractice and lack of informed consent, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Suffolk County (LaSalle, J.), dated January 2, 2014, which denied their motion pursuant to CPLR 4404(a) to set aside so much of the jury verdict as, upon finding that the defendant Edward J. Bieniewicz departed from good and accepted medical practice by failing to obtain informed consent from the plaintiff Lydia Figueroa–Burgos prior to treatment, found that such departure was not a substantial factor in causing injury to the plaintiff Lydia Figueroa–Burgos, and for judgment as a matter of law on the issue of liability on the cause of action alleging lack of informed consent or, in the alternative, to set aside that portion of the jury verdict as against the weight of the evidence and for a new trial on the cause of action alleging lack of informed consent, and (2), as limited by their brief, from so much of a judgment of the same court entered February 27, 2014, as, upon the jury verdict, and upon the order dated January 2, 2014, is in favor of the defendant Edward J. Bieniewicz and against them dismissing the cause of action alleging lack of informed consent.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the facts and in the exercise of discretion, so much of the judgment as is in favor of the defendant Edward J. Bieniewicz and against the plaintiffs dismissing the cause of action alleging lack of informed consent is vacated, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial on the cause of action alleging lack of informed consent insofar as asserted against the defendant Edward J. Bieniewicz; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

The defendant Edward J. Bieniewicz (hereinafter the defendant) performed a breast reduction surgery on the plaintiff Lydia Figueroa–Burgos (hereinafter the plaintiff). The plaintiff and her husband, suing derivatively, commenced this action to recover damages for, inter alia, lack of informed consent. After a trial, the jury rendered a verdict, among other things, finding that the defendant departed from good and accepted medical practice by failing to provide appropriate information to the plaintiff prior to performing the surgery, but this departure was not a substantial factor in causing injury to the plaintiff. The Supreme Court denied the plaintiffs' motion pursuant to CPLR 4404(a) to set aside that portion of the verdict and for judgment as a matter of law on the issue of liability on the lack of informed consent cause of action or, in the alternative, to set aside that portion of the verdict as contrary to the weight of the evidence and for a new trial on the lack of informed consent cause of action.

We agree with the plaintiffs that they are entitled to a new trial on the lack of informed consent cause of action due to errors in the Supreme Court's jury charge and verdict sheet. "[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence" (Jolly v. Russell, 203 A.D.2d 527, 528, 611 N.Y.S.2d 232 ). To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove "(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" (Spano v. Bertocci, 299 A.D.2d 335, 337–338, 749 N.Y.S.2d 275 [internal quotation marks omitted]; see Public Health Law § 2805–d[1], [3] ; Chan v. Toothsavers Dental Care, Inc., 125 A.D.3d 712, 713–714, 4 N.Y.S.3d 59 ; Trabal v. Queens Surgi–Center, 8 A.D.3d 555, 556–557, 779 N.Y.S.2d 504 ). "The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury" (Trabal v. Queens Surgi–Center, 8 A.D.3d at 556–557, 779 N.Y.S.2d 504 ; see Mondo v. Ellstein, 302 A.D.2d 437, 754 N.Y.S.2d 579 ; Santilli v. CHP, Inc., 274 A.D.2d 905, 711 N.Y.S.2d 249 ; Bernard v. Block, 176 A.D.2d 843, 848, 575 N.Y.S.2d 506 ; Flores v. Flushing Hosp. & Med. Ctr., 109 A.D.2d 198, 490 N.Y.S.2d 770 ). " ‘To state it in other terms, the causal connection between a doctor's failure to perform his [or her] duty to inform and a patient's right to recover exists only when it can be shown objectively that a reasonably prudent person would have decided against the procedures actually performed. Once that causal connection has been established, the cause of action in negligent malpractice for failure to inform has been made out and...