Thaw v. N. Shore Univ. Hosp.

129 A.D.3d 937

12 N.Y.S.3d 152

2015 N.Y. Slip Op. 05173

Sandra THAW, appellant

v.NORTH SHORE UNIVERSITY HOSPITAL, et al., respondents, et al., defendant.

2012-10336

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

June 17, 2015.

Parker Waichman LLP, Port Washington, N.Y. (Jay L.T. Breakstone and Brett A. Zekowski of counsel), for appellant.

Martin Clearwater & Bell LLP, New York, N.Y. (Arjay G. Yao and Rosaleen T. McCrory of counsel), for respondents.

PETER B. SKELOS, J.P., SHERI S. ROMAN, ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.

Opinion

In an action, inter alia, to recover damages for medical malpractice, assault and battery, and lack of informed consent, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), entered August 10, 2012, as granted those branches of the motion of the defendants North Shore University Hospital, North Shore Women's Health, and Teresa Lazar which were pursuant to CPLR 3211 (a)(7) to dismiss the cause of action alleging assault and battery and for summary judgment dismissing the cause of action alleging lack of informed consent.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants North Shore University Hospital, North Shore Women's Health, and Teresa Lazar which was for summary judgment dismissing the cause of action alleging lack of informed consent, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, who was a patient of the defendant Teresa Lazar, a physician employed by the defendants North Shore University Hospital and North Shore Women's Health (hereinafter collectively the defendants), alleges that on April 27, 2007, Lazar performed an unauthorized hysterectomy upon her, constituting assault and battery. The plaintiff also asserts causes of action based on, inter alia, lack of informed consent and medical malpractice.

In 2007, after an MRI examination indicated “a pelvic mass,” and “ concern for malignancy,” the plaintiff consented to the performance of a laparoscopic procedure, rather than a hysterectomy. However, according to Lazar, the plaintiff “agreed to the possibility of a hysterectomy.” Before the operation, the plaintiff signed a consent form, which stated that she was consenting to “[o]perative laparoscopy... Possible exploratory laparotomy. Total abdominal hysterectomy. PAP smear. Possible staging ... Removal of diseased tissue.” According to Lazar, the decision to perform the hysterectomy was made during the operation, because the pelvic mass was very large, was atypical in appearance, and “appear[ed] diseased.” The plaintiff testified at her deposition that she signed the consent form, but claimed she had no opportunity to read it, was bullied into doing so, and was under the influence of anesthesia when she signed it.

In the order appealed from, the Supreme Court granted those branches of the defendants' motion which were to dismiss the assault and battery cause of action pursuant to CPLR 3211(a)(7) for failure to state a cause of action, and for summary judgment dismissing the cause of action alleging lack of informed consent.

“When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ... If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one ... [The motion] must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Bokhour v. GTI Retail Holdings, Inc., 94 A.D.3d 682, 682–683, 941 N.Y.S.2d 675 [citations and internal quotation marks omitted] ).

“To plead a cause of action to recover damages for assault, a plaintiff must allege intentional ‘physical conduct placing the plaintiff in imminent apprehension of harmful contact’ ” (Gould v. Rempel, 99 A.D.3d 759, 760, 951 N.Y.S.2d 677, quoting Bastein v. Sotto, 299 A.D.2d 432, 433, 749 N.Y.S.2d 538 ; see Cotter v. Summit Sec. Servs. Inc., 14 A.D.3d 475, 475–476, 788 N.Y.S.2d 153 ). “To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature” (Cotter v. Summit Sec. Servs., Inc., 14 A.D.3d at 475–476, 788 N.Y.S.2d 153 ). Here, the evidence in the record upon which the Supreme Court relied established that “a material fact as claimed by the plaintiff” was “not a fact at all” (Agai v. Liberty Mut. Agency Corp., 118 A.D.3d 830, 832, 988 N.Y.S.2d 644 ). Notwithstanding the plaintiff's allegations and testimony that she never gave permission for the performance of a hysterectomy, the signed consent form clearly authorized such a procedure, and she admitted that she signed the consent form. Therefore, dismissal of the assault and battery cause of action was proper (see Ponholzer v. Simmons, 78 A.D.3d 1495, 910 N.Y.S.2d 609 ; Salandy v. Bryk, 55 A.D.3d 147, 152, 864 N.Y.S.2d 46 ; cf. Cerilli v. Kezis, 306 A.D.2d 430, 761 N.Y.S.2d 311 ).

“To succeed in a medical malpractice cause of action premised on lack of informed consent, a plaintiff must demonstrate that (1) the practitioner failed to disclose the risks, benefits and alternatives to the procedure or treatment 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 procedure or treatment (see Public Health Law § 2805–d[1], [3] )” (Orphan v. Pilnik, 15 N.Y.3d 907, 908, 914 N.Y.S.2d 729, 940 N.E.2d 555 ). Here the plaintiff's deposition testimony indicates that she was not fully advised of the risks, benefits, and alternatives to the procedure or treatment, including the fact that one of the risks was a total hysterectomy and/or perforation of the bowel, nor was it established as a matter of law that if the plaintiff received full disclosure, she still would have consented to the procedure. Since the defendants' submissions included the plaintiff's deposition testimony, they failed to establish, prima facie, that there were no triable issues of fact with respect to the cause of action alleging lack of informed consent (see Orphan v. Pilnik, 15 N.Y.3d at 908–909, 914 N.Y.S.2d 729, 940 N.E.2d 555 ; Rivera v. Albany Med. Center Hosp., 119 A.D.3d 1135, 1138, 990 N.Y.S.2d 310 ). Accordingly, 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 consent.

ROMAN, MILLER and HINDS–RADIX, JJ., concur.

SKELOS, J.P., concurs in part and dissents in part, and votes to reverse the order, on the law, and deny those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging, in effect, battery and for summary judgment dismissing the cause of action alleging lack of informed consent with the following memorandum, in which LaSALLE, J., concurs.

The plaintiff alleged in her pleadings that, during a surgical procedure to which she had consented, the defendant Theresa Lazar, a physician employed by the defendant North Shore University Hospital, also performed a total abdominal hysterectomy on her “without her consent and against her specific instructions.” Based upon this allegation, the plaintiff asserted a cause of action to recover damages for, in effect, battery. The plaintiff also asserted a cause of action alleging lack of informed consent.

The defendants Lazar, North Shore University Hospital, and North Shore Women's Health (hereinafter collectively the defendants) moved for summary judgment dismissing the lack of informed consent cause of action, and also moved, pursuant to CPLR 3211(a)(7), to dismiss the battery claim for failure to state a cause of action. In support of the latter branch of their motion, the defendants, while acknowledging that, on multiple occasions during the course of treatment, the plaintiff had expressed that she did not wish to undergo a total abdominal hysterectomy, relied upon a consent form signed by the plaintiff, which acknowledged the possibility that she might undergo a total abdominal hysterectomy. According to the plaintiff, the form was presented to her urgently, immediately before surgery, while she was in the operating room and without her glasses, she was told to sign it, and she did so without reading it. The Supreme Court granted the defendants' motion.

The majority correctly concludes that the defendants were not entitled to summary judgment dismissing the lack of informed consent cause of action. However, they affirm the granting of the branch of the defendants' motion which was to dismiss the battery claim for failure to state a cause of action, concluding that the defendants demonstrated, solely by virtue of the plaintiff's signature on the consent form, that the plaintiff's factual allegation that the defendants performed a total abdominal hysterectomy without her consent is “not a fact at all” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). In light of the surrounding circumstances, including those under which the plaintiff claims the consent form was signed, I cannot agree with that conclusion. Therefore, I concur in part and dissent in part.

The plaintiff began seeing Lazar in September 2004, in connection with a mass detected on a pelvic...