JAMES v. GREENBERG (2008)

In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Patterson, J.), entered August 30, 2007, which, in effect, upon the granting of that branch of the defendant's motion which was pursuant to CPLR 4401 for judgment as a matter of law dismissing the cause of action to recover damages for lack of informed consent, made at the close of the plaintiff's case, and upon a jury verdict, is in favor of the defendant and against her dismissing the complaint.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof in favor of the defendant and against the plaintiff dismissing the cause of action to recover damages for lack of informed consent;  as so modified, the judgment is affirmed, that branch of the defendant's motion which was pursuant to CPLR 4401 for judgment as a matter of law dismissing the cause of action to recover damages for lack of informed consent is denied, that cause of action is reinstated, and the matter is remitted to the Supreme Court, Kings County, for a new trial on that cause of action, with costs to abide the event.

 The trial court erred in granting that branch of the defendant's motion which was pursuant to CPLR 4401 for judgment as a matter of law dismissing the cause of action to recover damages based on lack of informed consent.   To succeed on a cause of action to recover damages for lack of informed consent, a plaintiff must establish, inter alia, that a reasonably prudent person in the plaintiff's position would not have undergone the surgery if he or she had been fully informed of the reasonably foreseeable risks, benefits, and alternatives to the surgery (see Public Health Law § 2805-d [3];  Innucci v. Bauersachs, 201 A.D.2d 460, 607 N.Y.S.2d 130).   Contrary to the trial court's determination, viewing the evidence in the light most favorable to the plaintiff, and according her every favorable inference that can be reasonably drawn therefrom (see Bryan v. Staten Is. Univ. Hosp., 54 A.D.3d 793, 793-794, 864 N.Y.S.2d 466), the jury could have rationally concluded that a reasonably prudent person in the plaintiff's position would not have undergone the surgery if he or she had been fully informed of the risks attendant thereto.   In this regard, the plaintiff testified that she would not have undergone the surgery had she known of those risks (see Osorio v. Brauner, 242 A.D.2d 511, 511-512, 662 N.Y.S.2d 488;  Dooley v. Skodnek, 138 A.D.2d 102, 106-107, 529 N.Y.S.2d 569;  Alberti v. St. John's Episcopal Hosp.-Smithtown, 116 A.D.2d 612, 613, 497 N.Y.S.2d 701;  Lipsius v. White, 91 A.D.2d 271, 280, 458 N.Y.S.2d 928).   Accordingly, we grant a new trial on the cause of action to recover damages for lack of informed consent.

The plaintiff's remaining contentions concerning certain evidentiary rulings are without merit.