Wigand v. Modlin

¶1Although the plaintiff established her prima facie entitlement to judgment as a matter of law on the cause of action to recover damages for medical malpractice (see Public Health Law § 2805-d; Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]; Feinberg v Feit, 23 AD3d 517, 518-519 [2005]), the defendant raised a triable issue of fact as to whether he deviated from the relevant standard of care (see Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563, 565-567 [2009]; DiMitri v Monsouri, 302 AD2d 420, 420-421 [2003]). Similarly, in response to the plaintiff’s establishment of her prima facie entitlement to judgment as a matter of law on the cause of action alleging lack of informed consent, the defendant raised a triable issue of fact as to whether the risks at issue were foreseeable and, therefore, should have been communicated to the plaintiff prior to the procedure (see Public Health Law § 2805-d; Spano v Bertocci, 299 AD2d 335, 337-338 [2002]; Bernard v Block, 176 AD2d 843 [1991]). Accordingly, the Supreme Court properly denied the plaintiffs motion for summary judgment on the issue of liability (see Feinberg v Feit, 23 AD3d at 519; Shields v Baktidy, 11 AD3d 671, 672 [2004]). Rivera, J.E, Miller, Leventhal and Chambers, JJ., concur.