Innucci v. Bauersachs

In an action to recover damages for medical malpractice, etc., the defendant appeals from a judgment of the Supreme Court, Kings County (Monteleone, J.), entered April 1, 1991, which, upon a jury verdict, is in favor of the plaintiffs and against her in the principal sum of $275,000. Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed. The plaintiff Rosalind Innucci, a college administrator, and her husband, a staff manager for the Prudential Insurance Company, commenced this action to recover damages for the defendant’s alleged malpractice in performing a hysterectomy on Mrs. Innucci. The plaintiffs also sought damages for lack of informed consent. The jury found that, although the defendant had not departed from good and accepted medical practices in performing the surgery, the plaintiffs had established their cause of action to recover damages for lack of informed consent. We agree with the appellant that the verdict against her on the lack-of-informed-consent cause of action is not based upon legally sufficient evidence. Accordingly, we dismiss the complaint (see, Cohen v Hallmark Cards, 45 NY2d 493). The plaintiffs’ cause of action to recover damages for lack of informed consent is governed by Public Health Law § 2805-d. In order to recover under that section, a plaintiff must establish (1) that the medical practitioner failed to disclose to him or her the reasonably foreseeable risks, benefits, and alternatives to the surgery which would have been disclosed by a reasonable medical practitioner in similar circumstances (Public Health Law § 2805-d [1]), and (2) "that a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he [or she] 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” (Public Health Law § 2805-d [3]). Here, the plaintiffs failed to present evidence establishing that an informed, reasonably prudent person would not have consented to the procedure (see, e.g., Hylick v Halweil, 112 [461] AD2d 400; see also, Goodreau v State of New York, 129 AD2d 978). Thompson, J. P., Rosenblatt, Altman and Hart, JJ., concur.