Joan Orphan v. Samuel Pilnik, M.D.
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 193
Joan Orphan,
Appellant,
v.
Samuel Pilnik, M.D., et al.,
Respondents,
et al.,
Defendants.
Stephen H. Weiner, for appellant.
Ellen B. Fishman, for respondents.
MEMORANDUM:
The order of the Appellate Division should be affirmed,
with costs.
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
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No. 193
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 ยง 2805-d [1], [3]).
Expert medical testimony
is required to prove the insufficiency of the information
disclosed to the plaintiff (CPLR 4401-a).
On 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]).
In opposition to the motion for summary judgment,
plaintiff submitted her own affidavit and the affirmation of her
medical expert.
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
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No. 193
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, plaintiff's opposition to defendant's motion for
summary judgment failed to demonstrate the existence of a triable
issue of fact.
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Order affirmed, with costs, in a memorandum. Chief Judge Lippman
and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones
concur.
Decided November 23, 2010
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