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15 N.Y.3d 907

Orphan v. Pilnik

New York Court of Appeals

Decided November 23, 2010

New York Court of Appeals · decided 2010-11-23

Cited by 4 later decisions — most recently January 2019

Key passage — most relied on by later courts

“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.”

quoted by 1 later decision, including I.M. v. United States

“Expert medical testimony is required to prove the insufficiency of the information disclosed to the plaintiff.”

quoted by 1 later decision, including I.M. v. United States

Good law ✅— No negative treatment on recordhow we know

Decided 2010-11-23

View the full empirical analysis of this case →

¶1OPINION OF THE COURT

¶2Memorandum.

¶3The order of the Appellate Division should be affirmed, with costs.

¶4To 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 plaintiffs position, fully informed, would have elected not to undergo the procedure or treatment (see Public Health Law § 2805-d [1], [3]). Expert medical testimony is required to prove the insufficiency of the information disclosed to the plaintiff (CPLR 4401-a).

¶5On this appeal, the sole remaining cause of action alleges that plaintiff did not give informed consent to a procedure to remove a suspicious mass from her breast, because she was not made aware that the procedure would leave a 6.5 centimeter scar. The remaining defendant—the doctor who performed the procedure—moved for summary judgment dismissing the complaint. Because plaintiff does not dispute that defendant established his prima facie entitlement to judgment as a matter of law, the only issue remaining is whether plaintiff, in opposition to the motion, demonstrated the existence of triable issues of fact (see Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320 [2009]).

¶6In opposition to the motion for summary judgment, plaintiff submitted her own affidavit and the affirmation of her medical

¶7*909expert. The expert’s affirmation was tentative and vague, and would not state with certainty that the information plaintiff allegedly received prior to the procedure was a departure from what a reasonable practitioner would have disclosed. Moreover, the evidence proffered by 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 a second opinion. Accordingly, plaintiffs opposition to defendant’s motion for summary judgment failed to demonstrate the existence of a triable issue of fact.

¶8Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

¶9Order affirmed, with costs, in a memorandum.

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