BOUTUREIRA v. GROTAS (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), entered January 13, 2025.  The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as was based upon a plication surgery performed on the plaintiff on May 3, 2019, and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

In September 2018, the plaintiff sought treatment from the defendant Aaron B. Grotas, a urologist, for Peyronie's disease.  On May 3, 2019, Grotas performed a plication surgery on the plaintiff's penis to correct curvature and other conditions caused by Peyronie's disease.  Thereafter, the plaintiff commenced this action against Grotas and his medical practice to recover damages for medical malpractice and lack of informed consent arising from Grotas's treatment of the plaintiff, including the plication surgery and postsurgery shock-wave therapy.  The plaintiff alleged, among other things, that the defendants committed medical malpractice because the plication surgery was contraindicated given the acute progression of the plaintiff's Peyronie's disease at that time.  Following discovery, the defendants moved for summary judgment dismissing the complaint.  In an order entered January 13, 2025, the Supreme Court granted the defendants' motion.  The plaintiff appeals.

“On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant[s] bear[ ] the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries” (Starre v. Dean, 229 A.D.3d 728, 729–730, 215 N.Y.S.3d 490 [internal quotation marks omitted];  see Hall v. Bolognese, 210 A.D.3d 958, 178 N.Y.S.3d 564).  “To sustain this burden, the defendant[s] must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars” (Hiegel v. Orange Regional Med. Ctr., 219 A.D.3d 910, 913, 195 N.Y.S.3d 720).  “Once the defendant[s] meet[ ] [their] prima facie burden, the plaintiff must demonstrate in opposition the existence of a triable issue of fact as to the elements with respect to which the defendant[s] ha[ve] met [their] initial burden” (Starre v. Dean, 229 A.D.3d at 730, 215 N.Y.S.3d 490 [internal quotation marks omitted] ).

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing so much of the cause of action alleging medical malpractice as was based upon the plication surgery.  The defendants' submissions, including an affirmation of their expert physician and transcripts of the deposition testimony of Grotas and the plaintiff, failed to eliminate triable issues of fact as to whether the plaintiff's Peyronie's disease was in an acute phase at the time of the plication surgery, in which case plication surgery would not be recommended.  Thus, the defendants' submissions were insufficient to establish that they did not depart from good and accepted medical practice in performing the plication surgery or that such departure was not a proximate cause of the plaintiff's injuries (see Hiegel v. Orange Regional Med. Ctr., 219 A.D.3d at 913, 195 N.Y.S.3d 720).

“To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (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” (Clinkscales v. Tostanoski, 241 A.D.3d 773, 775, 240 N.Y.S.3d 454 [internal quotation marks omitted];  see Rymer v. Bernstein, 245 A.D.3d 852, 247 N.Y.S.3d 466).  “The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law” (Mattocks v. Ellant, 231 A.D.3d 813, 817, 219 N.Y.S.3d 715 [internal quotation marks omitted] ).  “ ‘[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, by demonstrating that a reasonably prudent person in the plaintiff's position would not have declined to undergo the surgery, or by demonstrating that the actual procedure performed for which there was no informed consent was not a proximate cause of the injury’ ” (id., quoting Pirri–Logan v. Pearl, 192 A.D.3d 1149, 1151, 145 N.Y.S.3d 545).

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing so much of the cause of action alleging lack of informed consent as was based upon the plication surgery.  The defendants' submissions failed to establish that the plaintiff was given sufficient information and advice regarding the risks, benefits, and alternatives to the plication surgery under the circumstances, including performing the surgery while the plaintiff's Peyronie's disease was in an acute phase (see Whitnum v. Plastic & Reconstructive Surgery, P.C., 142 A.D.3d 495, 498, 36 N.Y.S.3d 470).

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as was based upon the plication surgery performed on the plaintiff, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The plaintiff's remaining contentions are without merit.

IANNACCI, J.P., DOWLING, VENTURA and GOLIA, JJ., concur.