Schussheim v. Barazani

136 A.D.3d 787

24 N.Y.S.3d 756

Cheryl SCHUSSHEIM, appellant,

v.Lance BARAZANI, etc., et al., respondents.

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

Feb. 10, 2016.

Cheryl Schussheim, Mineola, N.Y., appellant pro se.

Law Offices of Mitchell J. Angel PLLC, Mineola, N.Y. (Vincent Ieraci of counsel), for respondents.

JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and BETSY BARROS, JJ.

In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Diamond, J.), dated September 30, 2013, which granted the defendants' motion for summary judgment dismissing the complaint and, in effect, denied, as academic, the plaintiff's cross motion for summary judgment on the issue of liability, and (2), as limited by her brief, from so much of an order of the same court dated February 24, 2014, as, upon reargument, adhered to the determination in the order dated September 30, 2013.

ORDERED that the appeal from the order dated September 30, 2013, is dismissed, without costs or disbursements, as that order was superseded by the order dated February 24, 2014, made upon reargument; and it is further,

ORDERED that the order dated February 24, 2014, is modified, on the law, (1) by deleting the provision thereof, upon reargument, adhering to the determination in the order dated September 30, 2013, granting that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging lack of informed consent, and substituting therefor a provision, upon reargument, vacating the determination in the order dated September 30, 2013, granting that branch of the defendants' motion, and thereupon denying that branch of the defendants' motion, and (2) by deleting the provision thereof, upon reargument, adhering to the determination in the order dated September 30, 2013, denying, as academic, that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the cause of action alleging lack of informed consent, and substituting therefor a provision, upon reargument, vacating the determination in the order dated September 30, 2013, denying, as academic, that branch of the plaintiff's cross motion, and thereupon denying that branch of the plaintiff's cross motion on the merits; as so modified, the order dated February 24, 2014, is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action against the defendant Lance Barazani and the dermatology practice where he was employed, the defendant Advanced Dermatology, P.C. The plaintiff alleged, inter alia, that Barazani committed medical malpractice by improperly prescribing a topical cream to treat a nodular basal cell carcinoma on her left cheek, and then performing an unnecessary and premature biopsy on her left cheek, which left a scar. The plaintiff also alleged that Barazani failed to obtain her informed consent for the biopsy. The defendants moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the issue of liability. The Supreme Court, inter alia, granted the defendants' motion for summary judgment. The plaintiff moved to reargue, and upon reargument, the court adhered to its prior determination. The plaintiff appeals.

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 actual procedure performed for which there was no informed consent was the proximate cause of the injury (see Public Health Law § 2805–d[1] ; Figueroa–Burgos v. Bieniewicz, 135 A.D.3d 810, 23 N.Y.S.3d 369 ; Guctas v. Pessolano, 132 A.D.3d 632, 634, 17 N.Y.S.3d 749 ; Walker v. Saint Vincent Catholic Med. Ctrs., 114 A.D.3d 669, 670, 979 N.Y.S.2d 697 ; Spano v. Bertocci, 299 A.D.2d 335, 337–338, 749 N.Y.S.2d 275 ).

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent. The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law (see Walker v. Saint Vincent Catholic Med. Ctrs., 114 A.D.3d at 670–671, 979 N.Y.S.2d 697 ; Kozlowski v. Oana, 102 A.D.3d 751, 753, 959 N.Y.S.2d 500 ; Wilson–Toby v. Bushkin, 72 A.D.3d 810, 811, 898 N.Y.S.2d 633 ; Rezvani v. Somnay, 65 A.D.3d 537, 538–539, 882 N.Y.S.2d 910 ). The consent form provided by the defendants and signed by the plaintiff warned generally that there was a risk of scarring after the biopsy was conducted. However, the deposition testimony of the plaintiff and Barazani, which was submitted by the defendants in support of their motion, revealed a factual dispute as to whether Barazani properly advised the plaintiff of the risk of scarring before she signed the form (see Thaw v. North Shore Univ. Hosp., 129 A.D.3d 937, 939, 12 N.Y.S.3d 152 ; Chan v. Toothsavers Dental Care, Inc., 125 A.D.3d 712, 714, 4 N.Y.S.3d 59 ; Kelley v. Kingsbrook Jewish Med. Ctr., 100 A.D.3d 600, 601, 953 N.Y.S.2d 276 ; Barnett v. Fashakin, 85 A.D.3d 832, 835–836, 925 N.Y.S.2d 168 ). The defendants also failed to establish, prima facie, that if the plaintiff had received full disclosure, she still would have consented to the procedure (see Thaw v. North Shore Univ. Hosp., 129 A.D.3d at 939, 12 N.Y.S.3d 152 ; Rivera v. Albany Med. Ctr. Hosp., 119 A.D.3d 1135, 1138, 990 N.Y.S.2d 310 ; Muniz v. Katlowitz, 49 A.D.3d 511, 856 N.Y.S.2d 120 ; Baez v. Lockridge, 259 A.D.2d 573, 686 N.Y.S.2d 496 ). Accordingly, the defendants failed to eliminate all triable issues of fact, and the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging lack of informed...