CONTANT v. MOUNT SINAI HOSPITAL (2023)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about January 17, 2023, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established prima facie entitlement to summary judgment on plaintiff's informed consent cause of action by submitting expert affirmations opining that the anesthetic procedure performed by defendants did not proximately cause plaintiff's alleged injuries (see Public Health Law § 2805–d[1][3];  Orphan v. Pilnik, 66 A.D.3d 543, 544, 887 N.Y.S.2d 66 [1st Dept. 2009], affd 15 N.Y.3d 907, 914 N.Y.S.2d 729, 940 N.E.2d 555 [2010]).  Defendants’ expert anesthesiologist opined the ultrasound images from the anesthesia record showed that the procedure was performed properly.  In addition, defendants’ expert neurologist opined that plaintiff's pain arose from an autoimmune condition and that nothing defendants did or did not do was the proximate cause of the alleged injuries.  The neurologist also averred that given the location of needle insertion, it was logistically impossible for plaintiff to experience symptoms in his lower trunk as a result of the procedure.

In opposition, plaintiff failed to raise a triable issue of fact.  The expert opinion that plaintiff submitted in response was conclusory and failed to address a significant number of key assertions made by defendants’ experts, including that a nerve injury in the area where the needle was inserted would have caused issues with plaintiff's upper brachial trunk (the shoulder, rotator cuff, and deltoid) and not to the lower trunk distribution (the hand and fingers) (see Abalola v. Flower Hosp., 44 A.D.3d 522, 522, 843 N.Y.S.2d 615 [1st Dept. 2007]).

Given the unrebutted evidence that defendants’ care was not a substantial factor in causing plaintiff's injury, plaintiff's claim of lack of informed consent must be dismissed (see Vogt v. Herstik, 128 A.D.3d 602, 10 N.Y.S.3d 74 [1st Dept. 2015];  Evart v. Park Ave. Chiropractics, P.C., 86 A.D.3d 442, 443, 926 N.Y.S.2d 491 [1st Dept. 2011], lv denied 17 N.Y.3d 922, 934 N.Y.S.2d 371, 958 N.E.2d 549 [2011]).