TROPEANO v. SANDHU (2018)

Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered May 11, 2017, which, upon granting defendants' motion for a directed verdict, dismissed the complaint, unanimously affirmed, without costs.

Plaintiff Frederick Tropeano, after suffering prostate cancer and undergoing surgery, sought treatment for resulting urinary leakage difficulties.  Defendant Jaspreet Sandhu, M.D., recommended and implanted an artificial urinary sphincter (AUS) device, which did not function properly.  Plaintiff underwent a second surgical procedure to have the damaged device replaced.

Plaintiff's expert did not specifically opine as to whether Dr. Sandhu departed from a specific standard of accepted medical practice and thus, the trial court correctly granted defendants' motion for a directed verdict.  The conduct at issue here, which involved the implantation of a technologically challenging device, is not within the knowledge of a lay jury.  Nor could the jury discern, without expert testimony, whether this was a known risk or the occurrence of negligence (Calcagno v. Orthopedic Assoc. of Dutchess County, PC, 148 A.D.3d 1279, 48 N.Y.S.3d 832 [3rd Dept. 2017];  see also Dosanjh v. Satori Laser Center Corp., 127 A.D.3d 531, 6 N.Y.S.3d 550 [1st Dept. 2015] ).

The trial court also properly dismissed plaintiffs' claim for lack of informed consent.  Plaintiff testified that he was advised of the risks, benefits and alternatives to the surgery, and his expert failed to demonstrate that the information disclosed to plaintiff was insufficient (see Orphan v. Pilnik, 15 N.Y.3d 907, 908, 914 N.Y.S.2d 729, 940 N.E.2d 555 [2010];  Public Health Law § 2805–d[1], [3] ).

We have considered plaintiffs' remaining contentions and finds them unavailing.