TESTIMONY FROM PATIENT'S MEDICAL MALPRACTICE EXPERT WAS INSUFFICIENT TO CREATE ISSUE OF FACT AS TO WHETHER HOSPITAL EMPLOYEE FAILED TO OBTAIN PATIENT'S INFORMED CONSENT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Martin Hauptman v. New York and Presbyterian Hospital

Date: Feb. 2, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered September 22, 2010, dismissing the complaint pursuant to an order which granted defendant Vincent J. Lewis's (defendant) motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs. Appeal from above order unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Appeal from order, same court and Justice, entered July 8, 2010, which, to the extent appealable, denied plaintiff's motion to renew, unanimously dismissed, without costs, as academic.

Defendant, by the affirmation of his physician expert, sustained his initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby (Williams v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664 [2004]; Feliz v. Beth Israel Med. Ctr., 38 A.D.3d 396, 397, 833 N.Y.S.2d 23 [2007]). In opposition, plaintiff's physician's affidavit failed to raise an issue of fact. Rather, plaintiff's expert set forth conclusory statements regarding whether the treatment rendered to plaintiff constituted such a departure (Domaradzki v. Glen Cove Ob/Gyn Assoc., 242 A.D.2d 282, 660 N.Y.S.2d 739 [1997]).

Plaintiff's expert also failed to rebut defendant's prima facie case on the issue of lack of informed consent. Plaintiff's expert merely stated that "based on available information, the patient was not properly advised of the risks and hazards of the surgery and of available alternative treatments." This statement is a conclusion, and as such is insufficient to rebut defendant‑respondent's prima facie case (Public Health Law Sec. 2805-d[3]); see Orphan v. Pilnik, 66 A.D.3d 543, 544, 887 N.Y.S.2d 66 [2009], affd. 15 N.Y.3d 907, 914 N.Y.S.2d 729, 940 N.E.2d 555 [2010].

We have considered the parties' remaining contentions and find them unavailing.

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