PARESE v. SHANKMAN (2002)

 Supreme Court properly granted that part of defendant's motion in this medical malpractice action seeking to preclude plaintiffs from presenting any evidence at trial concerning the alleged lack of informed consent.  “It is well settled that lack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” (Jolly v. Russell, 203 A.D.2d 527, 528, 611 N.Y.S.2d 232).   Here, the complaint does not assert a cause of action for lack of informed consent, nor does the bill of particulars provide notice of such a cause of action.   Contrary to plaintiffs' contentions, language in the complaint and bill of particulars to the effect that the surgical procedure was unnecessary does not provide notice of such a cause of action (see generally Smith v. Bessen, 161 A.D.2d 847, 849, 555 N.Y.S.2d 894).   Furthermore, the court properly determined that defendant would be unduly prejudiced if plaintiffs were permitted to amend the pleadings on the eve of trial to assert a cause of action for lack of informed consent.  “ ‘[A]n informed consent claim necessarily depends on the recollections of the parties which unavoidably diminish over time,’ [and thus] the longer the delay in asserting such a claim, the more it stands to reason that the opposing party will be prejudiced” (Evans v. Kringstein, 193 A.D.2d 714, 715, 598 N.Y.S.2d 64;  see also Smith, 161 A.D.2d at 849, 555 N.Y.S.2d 894;  Polak v. Schwenk, 115 A.D.2d 142, 143, 495 N.Y.S.2d 519).

 We further conclude, however, that the court erred in granting that part of defendant's motion seeking to preclude plaintiffs from presenting the opinion testimony of the podiatrist of Patrick D. Parese (plaintiff) at trial.   As a general rule, when the proposed opinion testimony of a witness who is not a medical doctor is against a defendant who is a medical doctor, the opinion of the witness “as to the course of treatment defendant should have undertaken [is] beyond his professional and educational experience and cannot be considered competent medical opinion on [the] issue of defendant's negligence” (Jordan v. Glens Falls Hosp., 261 A.D.2d 666, 667, 689 N.Y.S.2d 538 [internal quotation marks omitted] ).   Here, although the podiatrist is not a medical doctor, both he and defendant, an orthopedic surgeon, are licensed to treat the type of injury sustained by plaintiff, and they perform the same surgical procedure at issue in this case.   In the absence of sufficient information concerning the professional and educational experience of the podiatrist, we conclude that it was premature for the court to preclude his opinion testimony.   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of defendant's motion seeking to preclude plaintiffs from presenting the opinion testimony of the podiatrist of plaintiff Patrick D. Parese at trial and as modified the order is affirmed without costs.

MEMORANDUM: