2012 New York Consolidated Laws
PBH - Public Health
Article 28 - (2800 - 2823) HOSPITALS
2805-D - Limitation of medical, dental or podiatric malpractice action based on lack of informed consent.

 
    §  2805-d.  Limitation  of  medical,  dental  or podiatric malpractice
  action based on lack of informed consent. 1. Lack  of  informed  consent
  means  the failure of the person providing the professional treatment or
  diagnosis to disclose to the patient such alternatives thereto  and  the
  reasonably  foreseeable  risks  and  benefits  involved  as a reasonable
  medical, dental or podiatric practitioner  under  similar  circumstances
  would  have  disclosed,  in  a  manner  permitting the patient to make a
  knowledgeable evaluation.
    2. The right of action to recover for  medical,  dental  or  podiatric
  malpractice  based  on  a  lack  of informed consent is limited to those
  cases  involving  either  (a)  non-emergency  treatment,  procedure   or
  surgery,  or  (b)  a  diagnostic  procedure  which  involved invasion or
  disruption of the integrity of the body.
    3. For a cause of action therefor it must also be established  that  a
  reasonably  prudent  person  in  the  patient's  position would not have
  undergone the treatment or diagnosis if he had been fully  informed  and
  that  the lack of informed consent is a proximate cause of the injury or
  condition for which recovery is sought.
    4. It shall be  a  defense  to  any  action  for  medical,  dental  or
  podiatric  malpractice  based  upon an alleged failure to obtain such an
  informed consent that:
    (a)  the  risk  not  disclosed  is  too  commonly  known  to   warrant
  disclosure; or
    (b)  the patient assured the medical, dental or podiatric practitioner
  he would undergo the treatment, procedure or diagnosis regardless of the
  risk involved, or the patient assured the medical, dental  or  podiatric
  practitioner that he did not want to be informed of the matters to which
  he would be entitled to be informed; or
    (c)  consent  by  or  on  behalf  of  the  patient  was not reasonably
  possible; or
    (d) the medical, dental or podiatric practitioner,  after  considering
  all of the attendant facts and circumstances, used reasonable discretion
  as  to  the  manner  and extent to which such alternatives or risks were
  disclosed to the patient because he reasonably believed that the  manner
  and  extent of such disclosure could reasonably be expected to adversely
  and substantially affect the patient's condition.