JANECZKO v. RUSSELL (2007)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered April 26, 2007, which, insofar as appealed from, denied defendants physicians' motion for summary judgment dismissing the claims of lack of informed consent, unanimously modified, on the law, to dismiss the claim of lack of informed consent made against defendant Elliot, and otherwise affirmed, without costs.

 The motion, insofar as made on behalf of Dr. Russell, a rheumatologist, was properly denied for lack of a prima facie showing that she informed plaintiff of the potential complications associated with the injection she gave plaintiff and the available alternatives thereto (see Public Health Law § 2805-d[1];  Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).   However, plaintiff's claim of lack of informed consent against Dr. Elliot, an orthopedic surgeon to whom plaintiff was referred by Dr. Russell after the injection, should have been dismissed upon the showing made in Dr. Elliot's expert's affirmation, not refuted in plaintiff's expert's affidavit, that Dr. Elliot's procedures could not have caused plaintiff's injury, a Mycobacteria chelonei infection;  the statement made in plaintiff's expert's affidavit that a Mycobacteria chelonei infection is commonly caused by injection;  and the undisputed fact that the infection preexisted plaintiff's first visit with Dr. Elliot.   It does not avail plaintiff to argue that even if the infection was not caused by Dr. Elliot, his failure to identify the infecting bacteria during subsequent visits and procedures caused the injury to continue.   A failure to diagnose cannot be the basis of a cause of action for lack of informed consent unless associated with a diagnostic procedure that “involve[s] invasion or disruption of the integrity of the body” (Public Health Law § 2805-d[2][b];  see Sample v. Levada, 8 A.D.3d 465, 466-467, 779 N.Y.S.2d 96 [2004];  Schel v. Roth, 242 A.D.2d 697, 698, 663 N.Y.S.2d 609 [1997] ), not the case here.