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New Trial on Breast Reduction Informed Consent Claim


A doctor performed a breast reduction surgery on a woman. The woman and her husband sued the doctor to recover damages for medical malpractice and lack of informed consent.

 

The Suffolk County Supreme Court’s charge to the jury included an instruction on the doctor’s duty to inform the woman of the alternatives to, and the potential risks of, the surgery. The two verdict sheet interrogatories asked the jury, first, to determine if the doctor departed from good and accepted medical practice by failing to provide appropriate information to the woman, and second, if so, whether “such departure” was “a substantial factor in causing injury” to the woman.

 

After a trial, the jury rendered a verdict, among other things, finding that the doctor departed from good and accepted medical practice by failing to provide appropriate information to the woman prior to performing the surgery, but this departure was not a substantial factor in causing injury to the woman.

 

The trial court denied the couple’s motion to set aside that portion of the verdict and for judgment as a matter of law on the issue of liability on the lack of informed consent cause of action.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court’s entry of judgment on a jury verdict in favor of the doctor on the medical malpractice claim and reversed the trial court’s entry of judgment on a jury verdict in favor of the doctor on the lack of informed consent claim. The court held that the couple was entitled to a new trial on the lack of informed consent cause of action due to errors in the trial court’s jury charge and verdict sheet.

 

The couple was entitled to a new trial on the lack of informed consent cause of action due to errors in the trial court’s jury charge and verdict sheet. To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury. The trial court’s charge to the jury did not include an instruction on the three elements of the cause of action for informed consent. Further, the three elements of the cause of action for informed consent were not accurately reflected in the two verdict sheet interrogatories submitted to the jury. The charge and the interrogatories did not instruct the jury to determine whether a reasonably prudent person in the woman’s position would not have undergone the treatment if fully informed and whether the woman’s injury was caused by the actual procedure for which there was no informed consent. The court reasoned that, while the jury received proper instruction on the issue of departure from the standard of care, the jury did not receive proper instruction with respect to the causal connection between that departure and the woman’s alleged injury. The court found that the errors were of such a fundamental nature that they warrant the invocation of its interest of justice jurisdiction.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court’s entry of judgment on a jury verdict in favor of the doctor on the medical malpractice claim and reversed the trial court’s entry of judgment on a jury verdict in favor of the doctor on the lack of informed consent claim, and remanded for a new trial on the informed consent claim.

 

See: Figueroa-Burgos v. Bieniewicz, 2016 WL 229953 (N.Y.A.D. 2 Dept., January 20, 2016) (not designated for publication).

 

See also Medical Law Perspectives, September 2012 Report: Cosmetic Surgery Gone Wrong: High Hopes Meet Unexpected Results 

 

 

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