On Informed Consent Issue Expert Testimony Found Sufficient

A woman underwent a colonoscopy and during the procedure, the rectosigmoid junction of her colon was perforated. The perforation was not immediately noticed. The next day the woman underwent emergency surgery to rectify the resulting medical problems.


The woman sued the doctor who performed the colonoscopy. She asserted three causes of action, for negligent performance of the colonoscopy, negligent post-procedure care, and lack of informed consent. The doctor moved for summary judgment. The Supreme Court of Erie County granted that part of the motion for summary judgment dismissing the lack of informed consent cause of action.


The Fourth Department of the Appellate Division of the New York Supreme Court reversed holding that the trial court erred in dismissing the cause of action for lack of informed consent. 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 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. The court found that the doctor met his initial burden of establishing his entitlement to judgment as a matter of law by submitting deposition testimony, medical records, and an expert report, which demonstrated that he informed the woman of the risks associated with the procedure, as well as the woman's signed written consent form, which confirmed her understanding of those risks.


However, the trial court erred in concluding that she failed to raise a triable issue of fact on the ground that she did not submit an expert's affidavit establishing that a reasonably prudent person in her position would have declined the procedure planned and performed by the doctor had she received a qualitatively sufficient explanation of its risks. Contrary to the trial court's conclusion, the appeals court held that expert testimony concerning what a reasonable person would have done in the plaintiff's position is not necessary to maintain a cause of action premised upon lack of informed consent. The court found that the woman’s affidavit addressing that element was sufficient to raise a triable issue of fact. Additionally, the affidavit of the woman's expert was sufficient to raise a triable issue of fact with respect to the qualitative insufficiency of the consent.


See: Gray v. Williams, 2013 WL 3358833, 2013 N.Y. Slip Op. 05140 (N.Y.A.D. 4 Dept., July 5, 2013) (not designated for publication).