Nilsa Ramos, Plaintiff, v. BETH ISRAEL MEDICAL CENTER (2026)

Recitation, as required by CPLR 2219 (a), of the papers considered in the review:

NYSCEF #s: 42-56, 58-64, 66

Defendants John Fox, M.D. ("Dr. Fox") and Beth Israel Medical Center ("Beth Israel") move for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiff's Complaint against them (Seq. No. 2). Plaintiff opposes the motion.

Plaintiff commenced this action on April 14, 2021, asserting claims of medical malpractice and lack of informed consent against the defendants. Plaintiff's claims arise from a cardiac catheterization procedure on September 6, 2019, in which Plaintiff's right ulnar artery was used for arterial access. Plaintiff alleges that she did not give informed consent, and that the alleged unconsented-to procedure proximately caused her to develop compartment syndrome, a complication involving restricted blood flow to the muscles and nerves, and other complications.

Plaintiff was 60 years old at the time of the events at issue and had a history of contrary artery disease and congestive heart failure. She had previously undergone multiple cardiac catheterizations, including five performed by Dr. Fox between 2012-2017, and stent placement.

On September 6, 2019, at approximately 4:00 a.m., Plaintiff presented to the emergency department of Beth Israel with complaints of nausea, heart palpitations, and chest discomfort for three days. She signed a consent form for cardiac catheterization at approximately 5:15 p.m.

Plaintiff testified that prior to the procedure, she spoke only to "nurses" and not Dr. Fox about the risks and method of the procedure. She testified that she specifically requested that they use her leg (femoral artery) rather than her wrist or arm, due to a prior cardiac catheterization when Dr. Fox had difficulty with her arm (radial artery).

Dr. Fox performed the cardiac catheterization from 6:27 p.m.-6:57 p.m., inserting the tube through the right ulnar artery. Plaintiff was found to have moderate diffuse disease in the mid-portion and distal portion of the left anterior descending artery, with 50-60% occlusion of the distal vessel and 30-50% occlusion of the proximal vessel. An operative report listed "Hematoma — Medium" under complications, and a TR band (wrist compression device) was applied to stop bleeding at the access site.

Plaintiff was transferred to the Post-Anesthesia Care Unit, where she complained of pain and numbness in the forearm. At 12:06 a.m. on September 7, 2019, Plaintiff was returned to the operating room due to an expanding hematoma in her right forearm and neurological symptoms. Nonparty vascular surgeon Dr. Ravin exposed the ulnar artery and reported an extensive amount of hematoma within the muscle, but no active bleed. She was noted to have symptoms of compartment syndrome.

On a September 10 examination, Dr. Ravin documented mild diminished sensation along the forearm but mostly intact mobility. Plaintiff was discharged from Beth Israel on September 11, 2019. Plaintiff subsequently underwent physical therapy in December 2019-January 2020 for pain, paresthesia, and weakness in her right elbow and forearm, which was attributed to compartment syndrome from the cardiac catheterization through her ulnar artery.

Plaintiff alleges that she did not give informed consent to the cardiac catheterization through her ulnar artery, and this procedure resulted in her sustaining injuries including "hematoma, nerve compression, surgical intervention, and permanent injuries to plaintiff's right upper extremity." Her claims against Beth Israel arise from vicarious liability for Dr. Fox.

Plaintiff opposes this summary judgment motion with respect to their second cause of action for lack of informed consent only. She does not assert any other claims that Dr. Fox or Beth Israel departed from good and accepted medical standards. Accordingly, the first cause of action alleging medical malpractice is dismissed without opposition.

Lack of informed consent is a distinct cause of action pursuant to Public Health Law § 2805-d, which is applicable to diagnostic procedures "which involved invasion or disruption of the integrity of the body." The statute requires that "the person providing the professional treatment or diagnosis" must disclose the reasonably foreseeable risks, benefits, and alternative to the procedure.

"[A]n action based solely on lack of informed consent requires proof of a breach by a doctor of his professional duty to outline the risks inherent in the operative procedures as well as proof that the resulting injury was caused by the doctor's disputed conduct" (Rigie v Goldman, 148 AD2d 23, 28 [2d Dept 1989].)

As an initial matter, the moving defendants argue that Plaintiff's lack of informed consent claim is not properly based in Public Health Law § 2805-d, but is in essence a claim of battery, and therefore it is time-barred by the statute of limitations. Battery is an intentional tort, the elements of which are "bodily contact, made with intent, and offensive in nature" (Thaw v N. Shore Univ. Hosp., 129 AD3d 937, 938 [2d Dept 2015]). In a battery claim, "intent to do injury is an essential element," although the intent required is not necessarily to cause harm but to "cause a bodily contact that a reasonable person would find offensive" (Spinosa v Weinstein, 168 AD2d 32, 41 [2d Dept 1991], quoting Murriello v Crapotta, 51 AD2d 381, 382 [2d Dept 1976]; Cerilli v Kezis, 16 AD3d 363, 364 [2d Dept 2005]).

At common law, courts initially deemed the informed consent cause of action to be "not based on any theory of negligence but is an offshoot of the law of assault and battery" as it involved "non-consensual touching of a patient's body, absent an emergency" (Fogal v Genesee Hosp., 41 AD2d 468, 473 [4th Dept 1973]). Notably, that cause of action still contained an analysis of whether there was "a reasonable disclosure of the known dangers" of the procedure or treatment, because a patient lacking such knowledge of the foreseeable risks is unable to provide meaningful consent (id.).

The courts' view of lack of informed consent has since shifted to a cause of action rooted in medical malpractice, as noted by the Second Department: "Traditionally, an action to recover damages for lack of informed consent has been viewed as constituting the common-law tort of assault and battery. The modern view, however, is that the failure of a doctor to properly inform his patient of the risks of an operation is a form of medical malpractice based on negligence." (Spinosa at 41 [internal citations omitted].) This is expressly stated in Public Health Law § 2805-d, which creates a cause of action for "medical, dental or podiatric malpractice" based in lack of informed consent. Whether the plaintiff in this action may have alternately pled a cause of action for battery, not asserted in their Complaint, is not before the Court in this motion.

As the Second Department has held, a patient's "interest in bodily integrity command[s] protection, not only against an intentional invasion by an unauthorized operation but also against a negligent invasion by his physician's dereliction of duty to adequately disclose" (Murriello at 382). In that case, as here, the plaintiff alleged a negligent failure on the part of the physician, rather than an intent to make offensive contact, which led to the patient's lack of fully informed consent and violation of bodily integrity. In a recent First Department case, where a patient claimed they provided consent for an L4 spinal injection and not an L5 injection, the court found this treatment was "not totally unauthorized or related to a completely different condition, as would be necessary to find a battery cause of action," but instead involved a lack of full awareness of the "risks and consequences involved" in the procedure (Gopstein v Vad, 247 AD3d 494. 495 [1st Dept 2026]).

The movants argue that Plaintiff's claim is grounded in an allegation of non-consensual "bodily contact" rather than a failure to disclose medical risks, benefits, and alternatives. In opposition, however, Plaintiff clearly sets forth a legal theory similar to Gopstein. Although the cardiac catheterization was not a "totally unauthorized" procedure, she alleges that she was never advised of that procedure's "risks and consequences" and was unaware her upper extremity may be involved and compromised.

For this reason, the Court rejects the movants' argument that the patient's informed consent claim sounds in battery and therefore should be subject to a one-year statute of limitations. Plaintiff alleges that Dr. Fox departed from good and accepted medical standards in obtaining Plaintiff's informed consent, a cause of action which falls under the medical malpractice statue of limitations of two years and six months (see Public Health Law § 2805-d; CPLR 214-a).

As summarized by the Second Department, a claim for lack of informed consent ultimately requires the plaintiff to demonstrate:

"(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" (Figueroa-Burgos v Bieniewicz, 135 AD3d 810, 811 [2d Dept 2016] [internal citations and quotation marks omitted]).

Thus, a defendant may establish prima facie entitlement to summary judgment on this claim based on any of its three elements, and the burden shifts to Plaintiff to raise a triable issue of fact.

On the first element, the Second Department has held that:

"[w]hile the signing of a generic consent form by the plaintiff does not establish that a defendant is entitled to summary judgment, a defendant can establish entitlement to summary judgment by demonstrating that the plaintiff signed a detailed consent form after being apprised of alternatives and foreseeable risks" (Pirri-Logan v Pearl, 192 AD3d 1149 [2d Dept 2021] [internal citations omitted]).

Here, the movants submit medical records which include a cardiac catheterization consent form signed by Plaintiff on September 6, 2019, affirming that the "undersigned clinician" (nonparty Neil Patel, M.D.) explained the foreseeable benefits, complications, and risks of the procedure. The form also stated that she consented to additional unforeseen procedures which may be deemed medically necessary.

Additionally, the movants submit an expert affirmation from Michael J. Attubato, M.D. ("Dr. Attubato"), a licensed physician board certified in internal medicine and cardiovascular diseases.

Dr. Attubato opines that Dr. Fox "obtained a proper informed consent" from Plaintiff prior to the cardiac catheterization. He acknowledges that the informed consent form was "executed by the plaintiff following a discussion with Dr. Patel at 5:15 p.m." Based on Plaintiff's testimony that she had undergone the procedure multiple times prior to September 6, 2019., the expert states that Plaintiff "had received numerous informed consent discussions in the past concerning cardiac catheterization procedures," and she was fully aware of "in essence how it was being performed and its general risks and benefits."

Dr. Attubato states that Plaintiff's claims arise from the fact she "allegedly voiced a demand for a femoral artery access procedure to be performed and did not consent to upper extremity access (neither radial artery, nor ulnar artery)." However, he opines that this is generally not a matter on which a patient dictates the type of treatment or provides express consent. He opines that although a patient's preference as to vascular access is "taken into account," a physician "does not permit a patient to determine the access site." He further opines that it was appropriate for Dr. Fox to make a medical determination on using the femoral, radial, or ulnar artery, as part of the procedure which she had consented to. He states that Plaintiff's alleged lack of consent for the ulnar artery access represented a minor "misunderstanding about how her vascular access would be assessed/obtained in connection with that procedure," rather than a lack of informed consent to the procedure overall.

In opposition, Plaintiff submits an expert affirmation from a licensed physician (name of expert redacted), board certified in cardiovascular disease and interventional cardiology. The signed, unredacted expert affirmation was presented to the Court for in camera inspection.

Plaintiff's expert opines that good and accepted medical practice required Dr. Fox, the physician performing the September 6, 2019 cardiac catheterization, to "personally communicate to the patient the material risks, benefits, alternatives, and foreseeable complications of the proposed access strategy through the ulnar artery." The expert notes that based on Plaintiff's testimony and the record, she never had a discussion with Dr. Fox about the September 6, 2019 procedure. The consent form was signed by another physician, and she testified she only recalled speaking to nurses.

Plaintiff's expert further notes that the patient was "Spanish speaking," her "desire and understanding" was that the approach would be transfemoral through her leg, and that "she had expressed that she did not want her arm used for catheter access in view of past failed attempts." In these circumstances, the expert opines that Dr. Fox should have had a "direct discussion with the patient, through an interpreter if necessary, about the proposed ulnar approach, the reason it was being considered, the alternative of femoral access, and the material risk that a vascular injury in the arm could further jeopardize the already compromised blood flow in the arm."

Plaintiff's expert opines that based on the record, "the femoral route constituted a viable alternative for vascular access" and ulnar artery access was not medically necessary. The expert also opines that even if Dr. Fox properly determined that the ulnar approach was preferable, he had a duty to first discuss this approach and disclose its risks and alternatives with Plaintiff.

Based on the parties' submissions, the Court finds that the remain triable issues of fact as to whether Plaintiff was fully informed of the risks and alternatives to the procedure before signing the hospital's general consent form. Dr. Fox testified that he did not recall any discussion he had with Plaintiff prior to the procedure, and there is no record that he ever discussed artery access with her.

Generally, "it is the responsibility of a physician to obtain informed consent to those procedures and treatments which the physician actually prescribes or performs" (Spinosa at 39 [2d Dept 1991] [internal quotation marks and citations omitted]). The cases cited by Plaintiff hold that hospital residents and nurses who merely have "a degree of participation" in a procedure do not have an independent duty to obtain informed consent, and this falls within the scope of duty of the physician performing the procedure ¹ (see also Doria v Benisch, 130 AD3d 777, 778 [2d Dept 2015]; Salandy v Bryk, 55 AD3d 147, 152 [2d Dept 2008]). Valid consent may be obtained by a treating physician through hospital personnel acting under his supervision or direction. Here, however, issues of fact remain as to whether Dr. Fox properly obtained such consent.

Defendants also argue that Plaintiff had consented and undergone multiple cardiac catheterization procedures in the past, using both her arm and leg on different occasions, and she was therefore already well aware of the foreseeable risks and alternatives to the procedure from her prior conversations with Dr. Fox and others. In fact, courts have found that a patient being previously informed of the risks of a procedure or treatment, even by other providers, may negate their alleged lack of awareness of those risks (see Spano v Bertocci, 299 AD2d 335, 338 [2d Dept 2002]). However, there is evidence in the record that at the time of the September 6, 2019 procedure, Plaintiff's femoral artery had been used in her most recent cardiac catheterizations. Thus, her understanding of the risks, alternatives, and nature of the procedure on that date was not necessarily the same as on her previous dates of treatment.

Plaintiff testified that on September 6, 2019, after speaking with nurses and hospital staff, she was under the belief that her femoral artery would be used, as it had been in her most recent cardiac catheterizations. When asked about using her wrist, she testified that "I told her [an unnamed nurse] no because I had problems there," referring to a prior cardiac catheterization in 2016. In his testimony, Dr. Fox explained that during that prior procedure, trying to use her wrist (by the radial artery) was unsuccessful and he proceeded to obtain access through her leg instead. Plaintiff testified that she understood at that time that "there was some kind of complication, maybe because my veins were very thin or because my veins were crossed" which prevented him from getting access through her wrist/arm. She later testified that when the nurses were preparing her for the procedure, "I told them it can't be done in my arm" and "I told her that I preferred in my thigh because I already had had problems with my arm." She testified that she was not aware they had used her arm until she woke up from the procedure.

The Court finds the discrepancies in the testimony, chart, and conflicting expert opinions create at least a triable issue of fact as to whether Plaintiff was informed of the foreseeable risks and alternatives to the procedure. Specifically, it is a question of fact for the jury whether she was reasonably informed of the plan or possibility of using her upper extremity for vascular access, and the foreseeable risks including compartment syndrome. The actual discussions she had with Dr. Fox and other physicians or nurses prior to the procedure remain unclear from the record, and the parties' experts have offered conflicting opinions as to whether Dr. Fox had a responsibility to discuss the differences in ulnar, radial, or femoral access with her and obtain her express preference, or whether it was a broad risk of the procedure she had undergone before and the access site was a matter of his medical judgment. For these reasons, the Court finds there remain issues of fact as to whether Plaintiff was "apprised of alternatives and foreseeable risks" before signing a general consent to the cardiac catheterization.

On the second element of Plaintiff's lack of informed consent claim, the movants' expert Dr. Attubato opines that "any reasonably prudent patient who was faced with the prospect of a possible impending myocardial infarction, having known prior coronary artery disease which was treated with stenting in two of the arteries within her heart, would have consented to a cardiac assessment via cardiac catheterization, and if warranted, a percutaneous coronary intervention." He opines that given Plaintiff's symptoms, her history of coronary artery disease, and her multiple prior cardiac catheterizations, it would be unreasonable to decline the catheterization procedure with ulnar artery access, even if she was fully informed of the risks and method.

In opposition, Plaintiff's expert does not expressly opine on the "reasonable person" element, but notes that Plaintiff had "a history of reported difficulty with radial access, an occluded radial artery, and a stated preference against access through the wrist."

The Court finds that there remain triable issues of fact as to the second element of informed consent which cannot be determined as a matter of law. Generally, it is an issue for the jury to decide whether a reasonably prudent person would have consented to the procedure if fully informed of the risks and alternatives. The movant has submitted a physician's opinion as to the "urgent" nature and benefits of the procedure for a person with coronary artery disease. However, these opinions do not fully eliminate issues of fact as to whether a "reasonable person" in Plaintiff's position would have given blanket consent for the type of vascular access obtained, in light of her alleged reservations and medical history. Thus, the Court finds this is an issue of fact which must be determined by a jury.

Finally, the third necessary element of lack of informed consent claim is proximate causation, which is "construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury" (Figueroa-Burgos v Bieniewicz, at 811-812, quoting Trabal v Queens Surgi-Ctr., 8 AD3d 555 [2d Dept 2004]).

On the issue of proximate causation, the movants' expert Dr. Attubato opines that an artery or arterial branch injury during a cardiac catheterization is a "well-known and accepted risk" of the procedure. He states that "often it is difficult for the clinician to know exactly what has caused the bleeding and potential hematoma," but it is usually caused by the initial arterial access or the advancement of the wire through the artery. The expert opines Dr. Fox appropriately chose the ulnar artery as a preferable method of access to the femoral artery, which carries its own potential risks and complications such as the "chance of more significant bleeding" and longer recovery time. He therefore opines that Plaintiff's post-procedure hematoma occurred in the absence of any negligence on Dr. Fox's part, both in obtaining her consent for the cardiac catheterization and performance of the procedure itself.

In opposition, Plaintiff's expert opines that the alleged lack of consent for the procedure, specifically the right ulnar artery access, was "a substantial factor in causing or contributing to the further weakness and disability of plaintiff's right arm and wrist." Specifically, the expert notes that if her "stated refusal of upper extremity access had been honored or meaningfully discussed," the procedure would have more likely been performed through the femoral artery, which Plaintiff's expert opines was a viable option. Plaintiff's expert opines that if this transfemoral approach was used rather than the unconsented-to ulnar approach, she would not have "sustained the right forearm hematoma, the ensuing compartment syndrome, or the continuing sequelae of right upper extremity pain, weakness, fatigue, and diminished ability to use her dominant arm for ordinary daily activities."

In the context of a lack of informed consent claim, liability is grounded in the physician's alleged failure to properly obtain consent, and the causation element is linked to whether the allegedly unconsented-to treatment or procedure was a substantial factor in the patient's injuries. As Plaintiff argues in opposition, the "core causation question" in this action is "whether the failure to obtain proper physician-led informed consent and the decision to proceed through the ulnar artery," rather than her leg, resulted in Plaintiff's forearm hematoma, compartment syndrome, and other claimed injuries. In contrast, the movants' expert opines that Dr. Fox's decision on the ulnar artery approach was a medical determination, and the patient's hematoma and related injuries were a known risk of any cardiac catheterization. Based on evaluation of the submissions, the Court finds there remain triable issues of fact and credibility as to proximate causation which must be resolved by a jury.

In sum, the Court finds Plaintiff has raised triable issues of fact on each of the three elements of a lack of informed consent claim, precluding summary judgment on this cause of action.

Accordingly, it is hereby:

ORDERED that Defendants Dr. Fox and Beth Israel Medical Center's motion (Seq. No. 2) for summary judgment is granted to the extent of dismissing Plaintiff's first cause of action for medical malpractice, and denied as to the second cause of action for lack of informed consent.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.

FOOTNOTES

1.   The Court notes that Plaintiff does not assert any direct claims against Beth Israel for the acts and omissions of the nurses or other hospital physicians. Their opposition papers opine solely on Dr. Fox's alleged failure to obtain informed consent, and Beth Israel's vicarious liability for Dr. Fox.

Consuelo Mallafre Melendez, J.