Etkin v. Marcus

In a medical malpractice action, plaintiff appeals from an order of the Supreme Court, Queens County, dated March 5, 1979, which denied her motion for leave to serve an amended complaint setting forth a cause of action for lack of informed consent against defendant Marcus only. Order affirmed, without costs or disbursements. The motion was properly denied because the proposed amendment is patently insufficient to set forth a cause of action for lack of informed consent. (See Molino v County of Putnam, 30 AD2d 929.) This is not a case where the wrong complained of, with respect to the defendant Marcus, arises from some affirmative violation of the plaintiff’s intestate’s physical integrity. (See, e.g., Eley v Brooklyn Cumberland Med. Center, 55 AD2d 925 [open heart surgery]; Murriello v Crapotta, 51 AD2d 381 [cataract surgery]; Zeleznick v Jewish Chronic Disease Hosp., 47 AD2d 199 [angiography].) To the contrary, as to said defendant, plaintiff complains of his alleged failure to advise plaintiff’s intestate of the seriousness of his condition, with the result that affirmative treatment was not sought in a timely manner. Rabin, J. P., Cohalan, O’Connor and Weinstein, JJ., concur.