Ethel Margolin, Plaintiff, v. MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES INC (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 002) 75, 76, 77, 78, 79, 80, 81, 82, 83 were read on this motion to/for SET ASIDE VERDICT.

In this action to recover damages for medical malpractice based on alleged departures from good and accepted practice and lack of informed consent, the plaintiff moves pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the defendants and against her dismissing the complaint, and for a new trial. The plaintiff contends that the verdict was contrary to the weight of the evidence, and that the verdict should also be set aside in the interests of justice, the latter on the grounds that this court erroneously (a) precluded her expert from testifying that it was a departure from the applicable standard of care for the defendants to forego bowel preparation prior to performing an ovarian cystectomy procedure upon her, and (b) declined to instruct the jury with respect to the cause of action alleging that the defendants did not obtain her fully informed consent to commencing the procedure as a laparoscopic procedure and converting it to an open procedure during the course of the surgery, rather than commencing the procedure as an open procedure in the first instance. The defendants oppose the motion. The motion is denied.

The sole question presented to the jury in connection with whether the defendant surgeon Michael Laquaglia, M.D., departed from good and accepted medical practice when performing a March 11, 2020 ovarian cystectomy was whether he failed to properly to repair the injuries to the plaintiff's colon that all of the parties conceded had occurred during the surgery. The jury answered "no" to that question. The court declined to permit the plaintiff's expert surgeon, Hazem Elariny, M.D., to testify as to whether Laquaglia also departed from good practice by virtue of inadequate preoperative bowel preparation, concluding that this was a newly articulated theory of recovery, with respect to which the defendants had not been provided adequate notice. Although the court permitted a significant amount of testimony with respect to whether the defendants obtained the plaintiff's fully informed consent to commence the surgical procedure laparoscopically and convert it to an open procedure intraoperatively if warranted, rather than commencing the surgery as an open procedure, the court declined to instruct the jury with respect to the cause of action. As to that cause of action, the court concluded that the plaintiff adduced insufficient evidence as to whether a reasonable patient, fully informed, would have declined to undergo the cystectomy in the manner proposed and ultimately performed by Laquaglia, and insufficient evidence that the alleged failure to obtain her fully informed consent caused or contributed to the injuries with respect to which she claimed the right to compensation in this action.

A motion pursuant to CPLR 4401(a) to set aside a verdict may be predicated upon a verdict that was contrary to the weight of the evidence, or may be granted in the interest of justice, which " 'encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise' " (Duman v Scharf, 186 AD3d 672, 674 [2d Dept 2020], quoting Allen v Uh, 82 AD3d 1025, 1025 [2d Dept 2011]; see Guaspari v Gorsky, 36 AD2d 225, 232 [4th Dept 1971]; cf. Cholewinski v Wisnicki, 21 AD3d 791, 792 [1st Dept 2005] [recognizing rule permitting a trial court to set aside verdict in the interests of justice, but declining to apply it to the facts of the case before it]).

The standard for making a determination as to whether the jury's verdict was contrary to the weight of the evidence is whether " 'the evidence so preponderate[d] in favor" of the defendants "that [the verdict] could not have been reached on any fair interpretation of the evidence' " (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995], quoting Moffatt v Moffatt, 86 AD2d 864, 864 [2d Dept 1982], affd 62 NY2d 875 [1984]; see Killon v Parrotta, 28 NY3d 101, 107 [2016]; McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 205 [1st Dept 2004]; Goldstein v Snyder, 3 AD3d 332, 333-334 [1st Dept 2004]; Kennedy v New York City Health & Hosps. Corp., 300 AD2d 146, 147 [1st Dept 2002]).

"Whether a particular factual determination is against the weight of the evidence is itself a factual question. . . . Thus, the question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors" (Cohen v Hallmark Card, Inc., 45 NY2d 493, 498-499 [1978]; see McDermott v Coffee Beanery, Ltd., 9 AD3d at 205). These factors include " 'an application of that professional judgment gleaned from the Judge's background and experience as a student, practitioner and Judge' " (Annunziata v City of New York, 175 AD3d 438, 441 [2d Dept 2019], quoting Nicastro v Park, 113 AD2d 129, 135 [2d Dept 1985]) and "interest of justice" factors (Jordan v Bates Adv. Holdings, Inc., 11 Misc 3d 764, 774-775 [Sup Ct, NY County 2006] [Acosta, J.]). Nonetheless, the court is mindful that "[a] preeminent principle of jurisprudence in this area is that the discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict" (Nicastro v Park, 113 AD2d at 133). Although a trial court possesses broad discretion to grant a new trial where the verdict is contrary to the weight of the evidence (see Bobek v Crystal, 291 AD2d 521, 522 [2d Dept 2002]; Salazar v Fisher, 147 AD2d 470, 471 [2d Dept 1989]), "the court is not free to interfere with the verdict simply because it views it as unsatisfactory, is in disagreement with it, or simply wishes to substitute its own determination for that of the jury" (Bobek v Crystal, 291 AD2d at 522; see Jankoff v Recess Restaurant, Inc., 2009 NY Slip Op 31160[U], *6, 2009 NY Misc LEXIS 5665, *7 [Sup Ct, NY County, May 28, 2009]; see generally Nicastro v Park, 113 AD2d at 133).

Generally, conflicting expert opinions offered by the parties at trial " 'present a credibility determination for the jury, which, as was its purview,' " permits it to resolve the disputed issue against either party (Salovin v Orange Regional Med. Ctr., 174 AD3d 1191, 1194 [3d Dept 2019], quoting Rabideau v Weitz, 169 AD3d 1330, 1332 [3d Dept 2019]; see Healthcare Professionals Ins. Co. v Parentis, 165 AD3d 1558, 1560 [3d Dept 2018]). Thus, under most circumstances, including those present in the instant matter, the court must give deference to the jury's resolution of credibility issues, and notes that, in a battle of experts, the conflicting testimony would generally not so preponderate in any party's favor such that the jury's verdict could not have been reached on any fair interpretation of the evidence (see Salovin v Orange Regional Med. Ctr., 174 AD3d at 1194 Rabideau v Weitz, 169 AD3d at 1332; Capierseo v Tomaino, 160 AD3d 1346, 1348 [4th Dept 2018]; Matter of New York City Asbestos Litig., 148 AD3d 233, 251 [1st Dept 2017]; Longtin v Miller, 133 AD3d 939, 941 [3d Dept 2015]).

In the instant matter, where there were sharply conflicting opinions elicited from the defendant surgeon Laquaglia and Laquaglia's retained expert gynecological surgeon Theodore Goldman, M.D., on the one hand, and the plaintiff's retained expert surgeon, Dr. Elariny, on the other, the court discerns no basis for concluding that the evidence so preponderated in the plaintiff's favor that the verdict in favor of the defendants should be set aside, and a new trial ordered. Hence, that branch of the plaintiff's motion which was to set aside the verdict as contrary to the weight of the evidence must be denied.

The court rejects the plaintiff's contention that it erroneously precluded her expert from testifying that Laquaglia's failure fully to perform preoperative bowel preparation, and thus assure that that her bowels had been emptied prior to the commencement of the procedure, constituted a departure from good practice that caused or contributed to her injuries. During the course of the trial, the plaintiff contended that her bill of particulars, CPLR 3101(d) expert disclosure statement, and affirmations submitted in opposition to the defendants' summary judgment motion placed the defendants on notice that she would be attempting to establish that this alleged failure was a departure from good practice, with respect to which she should be permitted to adduce expert testimony. She further argued that, since the defendants failed to object to her opening statement, in which this contention was raised, or to object to Laquaglia's own testimony concerning preoperative bowel preparation, they waived their right to preclude her expert from testifying thereto.

In her complaint, however, the plaintiff made only general allegations that, "[d]ue to septic complications caused by the failure of the defendants, their agents and/or employees to properly perform surgery, to properly monitor the plaintiff post operatively and the failure to timely discover the bowel injury, plaintiff experienced avoidable pain and was required to undergo multiple surgical procedures" (emphasis added). She further asserted therein that the defendants additionally were negligent in

"performing the surgery of March 11, 2020, in creating an iatrogenic injury to the sigmoid colon and in failing to discover same; in allowing fecal and other intestinal contents to leak from the injured sigmoid colon; in failing to properly protect adjacent structures not involved in the gynecological surgery; in failing to test that the integrity of the colon and rectum was maintained before completing the procedure of March 11, 2020."

In opposition to the defendants' summary judgment motion, the plaintiff's expert only addressed perioperative injury to her bowel as a consequence of the surgery, and rendered no specific opinion as to whether the defendants' preoperative bowel preparation was or was not within the standard of care. Nonetheless, as the plaintiff framed the issue, Laquaglia himself testified that a physician is required to use the safest means when treating a patient, and that it is unsafe to allow fecal contents to contaminate a wound. More specifically, she argued that, since Laquaglia himself had testified that there was a risk of intraoperative bowel injury, and conceded that he was required to prevent or reduce that risk, she should be permitted to adduce expert testimony to the effect that, by allowing fecal and intestinal contents to remain in the bowel at the time of surgery, Laquaglia increased the risks presented by the surgery. Hence, she contended that her expert should have been permitted to opine that Laquaglia departed from good and accepted surgical practice by undertaking inadequate preoperative bowel preparation, that this departure from good care was the reason that fecal matter leaked during her surgery, and that the leakage caused or contributed to infection or a bad outcome.

On the record at trial, however, this court explained as follows:

"The way I'm looking at this matter is we have a complaint, a BP, a 3101, motion for summary judgment, none of that mentioned anything about departures in the pre-operative stages. Everything is pertaining to the operation itself and things along that matter. So if this application [to preclude] had been made before trial I don't see any alternative other than to grant it. I don't see where failure to leak colon or fecal matter from the colon. I mean, it is just consistent with the theory of the case as everybody understood it. I believe up until the time that the trial started, which was that that pertained to the surgical aspects of it, nor do I see that there has been an--some sort of a waiver by the defense or even allowing the door to be opened, if you will.

"I've been looking at this several different ways. I mean, the testimony for the most part I don't think was really objectionable because it completed the narrative of what occurred to the plaintiff. I just don't--I don't see where failure to object would allow the door to be opened to adding a new departure that was not previously disclosed as a theory of the case or potential theory of the case for what the expert was potentially going to testify to."

This court further ruled, on the record, that the authority cited by the plaintiff in support of her contention that the defendants waived any objection to the admissibility of her expert's opinion testimony in connection with allegedly improper preoperative bowel preparation (see Schein v Chest Service Co., 38 AD2d 929, 929 [1st Dept 1972]) was inapposite. The court concluded that the decision in Schein stood only for the proposition that a defendant who failed timely to object to "improper and prejudicial" testimony of the plaintiff, which "impugned the morality of a physician" (id.) who had examined her on behalf of the defendant, and failed timely to move for a mistrial on that ground, had waived the objection, and could not wait to raise it for the first time in a posttrial motion to set aside a verdict in the plaintiff's favor.

In any event, " '[a] determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party's failure to comply with CPLR 3101(d)(1)(i) is left to the sound discretion of the court' " (Rivera v Montefiore Med. Ctr., 28 NY3d 999, 1002 [2016], quoting McGlauflin v Wadhwa, 265 AD2d 534, 534 [2d Dept 1999]). The court concludes that it providently exercised its discretion in precluding Dr. Elariny from testifying that Laquaglia committed malpractice by virtue of the latter's purportedly improper preoperative bowel preparation. As a general rule, a claim that has not specifically been raised in a plaintiff's complaint, bill of particulars, or CPLR 3101(d) disclosure statement, or in connection with a summary judgment motion, may not be raised for the first time at trial (see Thomas v 14 Rollins St. Realty Corp., 25 AD3d 317, 318 [1st Dept 2006] ["trial court properly precluded plaintiff's treating physician from testifying about the need for future knee replacement surgery, where such surgery was not mentioned in either plaintiff's bill of particulars or expert disclosure statement, or even in his physician's own records"]; see also Floyd v 1710 Realty, LLC, 145 AD3d 961, 963 [2d Dept 2016] ["Supreme Court erred in allowing the plaintiff's expert to testify about the plaintiff's need for a future wrist fusion surgery" since "[t]here was no mention of the prospect of future wrist fusion surgery in the plaintiff's pleadings, expert witness disclosure, or the expert's medical report"]; Smith v Sheehy, 45 AD3d 670, 671 [2d Dept 2007] ["the need for future surgery was not included in the pleadings, and, as such, the Supreme Court properly excluded such testimony"]; Inwood Security Alarm, Inc. v 606 Rest., Inc., 35 AD3d 194, 194 [1st Dept 2006] ["CPLR 3101(d) notice did not set forth the nature and relevance of proposed expert testimony," while "plaintiff's offer of proof during trial, disclosing a new theory of liability, went well beyond what defendants might reasonably have anticipated from the notice]; cf. Hernandez v Vavra, 62 AD3d 616, 617 [1st Dept 2009] [inconsistency between information in defendants' CPLR 3101(d) notice and substance of that expert's proposed testimony warranted trial court's preclusion of his testimony with respect to results of testing]).

With respect to whether a party's failure to assert sufficiently specific claims or defenses in a pleading, bill of particulars, or CPLR 3101(d) statement may, however, be waived, the determination by the Appellate Division, Third Department, in Zuzze v Butler (191 AD3d 1302, 1304 [4th Dept 2021]) is instructive. As that Court explained it,

"To the extent that there was testimony at trial establishing that a permanent bladder injury was an acceptable risk of the surgery, we note that such evidence was first raised by plaintiff's counsel during his direct examination of Butler. Regardless, any such testimony did not constitute a prejudicial change in defendants' theory of the case because the challenged testimony was phrased generically, and at no time did Butler or any of defendants' experts opine that plaintiff suffered permanent loss of bladder function because of the surgery."

Here, according to the plaintiff, since Laquaglia himself generically raised issues surrounding preoperative bowel preparation in response to questioning by her own attorney, and Laquaglia's attorney did not object to that line of questioning, the defendants thus opened the door to expert testimony by her own expert as to specific steps that Laquaglia should have taken, but did not, to assure that her bowel had been completely emptied immediately prior to the surgery. The court concludes, however, that the general statements made by the plaintiff's attorney in his opening, and Laquaglia's generic testimony concerning his obligation to reduce the risk of the plaintiff's surgery, were insufficient to constitute a waiver of the defendants' objection to the plaintiff's submission of expert testimony concerning the particular preoperative steps that Laquaglia should have taken to assure that the plaintiff's bowel had been emptied to the maximum extent possible. It further concludes that, in contrast to the defendants in Zuzze, the plaintiff's attempt to adduce a new theory of recovery based on waiver would indeed have prejudiced the defendants here, since they clearly were not on notice of the new claim and had not prepared a defense to it.

Even if the plaintiff timely had placed the defendants on notice of this newly asserted claim of departure from good medical practice, she did not place them on notice as to how her expert would render an opinion that inadequate preoperative bowel preparation caused or contributed to the plaintiff's claimed injuries, which were premised in this action almost exclusively on Laquaglia's malpractice in his postoperative treatment of the ovarian lacerations that all parties agreed that the plaintiff had sustained.

Consequently, the court denies that branch of the plaintiff's motion which was to set aside the verdict and for a new trial that she had made on the ground that her expert was not permitted to testify that Laquaglia's purported preoperative failure properly to prepare her bowel constituted a departure from good and accepted practice that proximately caused her injuries.

The elements of a cause of action to recover for lack of informed consent are

"(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"

(Spano v Bertocci, 299 AD2d 335, 337-338 [2d Dept 2002]; see Zapata v Buitriago, 107 AD3d 977, 979 [2d Dept 2013]). For a statutory claim of lack of informed consent to be actionable, a defendant must have engaged in a "non-emergency treatment, procedure or surgery" or "a diagnostic procedure which involved invasion or disruption of the integrity of the body" (Public Health Law § 2805-d[2]). " '[T]his showing of qualitative insufficiency of the consent [is] required to be supported by expert medical testimony' " (King v Jordan, 265 AD2d 619, 620 [3d Dept 1999], quoting Hylick v Halweil, 112 AD2d 400, 401 [2d Dept 1985]; see CPLR 4401-a; Gardner v Wider, 32 AD3d 728, 730 [1st Dept 2006]). Hence, where a defendant establishes his or her prima facie entitlement to judgment as a matter of law in connection with a lack of informed consent cause of action by submitting an expert affirmation from a physician, a plaintiff can only raise a triable issue of fact by submitting "an expert affirmation stating with certainty that the information defendant[ ] allegedly provided to plaintiff before the [medical] procedures at issue departed from what a reasonable practitioner would have disclosed" (Leighton v Lowenberg, 103 AD3d 530, 530 [1st Dept 2013]). Expert testimony, however, is not necessary with respect to the issue of whether a reasonably prudent person, fully informed, would not have consented to the treatment (see Gray v Williams, 108 AD3d 1085, 1086-1087 [4th Dept 2013]; Hugh v Ofodile, 87 AD3d 508, 509 [1st Dept 2011]; Andersen v Delaney, 269 AD2d 193, 193 [1st Dept 2000]; Hardt v LaTrenta, 251 AD2d 174, 174 [1st Dept 1998]; Osorio v Brauner, 242 AD2d 511, 511-512 [1st Dept 1997]).

" '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' " (Huichun Feng v. Accord Physicians, 194 AD3d 795, 797 [2d Dept 2021], quoting Schussheim v Barazani, 136 AD3d 787, 789 [2d Dept 2016]). Nonetheless, a defendant may satisfy the burden of demonstrating a prima facie entitlement to judgment as a matter of law in connection with such a cause of action where a patient signs a detailed consent form, and there is also evidence that the necessity of the procedure, along with known risks and dangers, were discussed prior to the surgery (see Bamberg-Taylor v Strauch, 192 AD3d 401, 401-402 [1st Dept 2021]).

Where a defendant moves for summary judgment dismissing a lack of informed consent cause of action, if a plaintiff "can establish, at trial, [his or] her contention that a reasonably prudent person in her position would not have taken the medication had [he] or she been aware that it might cause a defect of any kind, a cause of action is made out (Public Health Law § 2805-d[3])" (Farkas v Saary, 191 AD2d 178, 181 [1st Dept 1993]). Conversely, in the absence of any evidence sufficient to raise a triable question of fact as to whether a reasonably prudent patient, fully informed, would not have undergone the subject procedure, a court must award summary judgment to a defendant dismissing that cause of action (see Orphan v Pilnik, 66 AD3d 543, 544 [1st Dept 2009], affd 15 NY3d 907 [2010]; see also Karenevich-Dono v Haas, 231 AD3d 576, 578 [1st Dept 2024] ["there is no evidence that plaintiff would have forgone the surgery had she been informed of additional risks of the minimal incisions used. The record shows instead that plaintiff's condition was so serious that a reasonable person informed of the risks would have undergone the surgeries"]; Newell v City of New York, 204 AD3d 574, 575 [1st Dept 2022] [awarding summary judgment to defendant dismissing lack of informed consent cause of action since, among other things, "plaintiff failed to demonstrate, as required for an informed consent claim, that a reasonably prudent person, fully informed, would not have undergone the procedure"]; DeCintio v Lawrence Hosp., 33 AD3d 329, 329 [1st Dept 2006]). In Orphan, which the plaintiff here seeks to distinguish, the Appellate Division, First Department, noted that, while the

"plaintiff's medical expert opined that, if plaintiff's statements [were] credible, it appears that she 'was not informed properly of the invasive procedure,' and that "the surgical scar appears to be excessively large (6.5 cm) in relation to the small area of concern and the tissue that was ultimately removed (2 cm),' neither he nor plaintiff allege, let alone offer any evidence, that a reasonable person, having been told that she had a suspicious and possibly cancerous lesion in her breast, would not have undergone the procedure recommended by Dr. Pilnik, even if she was told that it would leave a 6.5 centimeter scar"

(Orphan v Plinik, 66 AD3d at 544). Similarly, in Hylick v Halweil (112 AD2d 400 [2d Dept 1985]), the Supreme Court granted the defendant's motion pursuant to CPLR 4401 to dismiss a lack of informed consent cause of action after the close of the plaintiff's case on the ground that the plaintiff had not adduced legally sufficient evidence that a reasonable person in her position would have declined to undergo a surgical procedure had she been fully informed of the risks and benefits thereof, and the alternatives thereto. In affirming the judgment entered upon the order granting the defendant's motion, the Appellate Division, Second Department, wrote:

"[a]ssuming, arguendo, that the testimony of plaintiff and her expert was sufficient to constitute a prima facie showing of qualitative insufficiency of consent, plaintiff was still required to establish, inter alia, that 'a reasonably prudent person in the patient's position would not have undergone the treatment or diagnosis if he had been fully informed' (Public Health Law § 2805-d [3]; Proce v Franklin Gen. Hosp., 83 AD2d 903). Such a determination would necessarily require the fact finder to balance the risks associated with having the procedure performed against the risks associated with forgoing it. This record is devoid of any evidence upon which a fact finder could give a nonspeculative answer to that question, and the cause of action was therefore properly dismissed (530 E. 89 Corp. v Unger, 43 NY2d 776, 778); see also Goodreau v State of New York, 129 AD2d 978)"

(id., 112 AD2d at 401-402 [2d Dept 1985] [emphasis added]; see DeRosa v Kaali, 240 AD2d 534, 535 [2d Dept 1997] [Supreme Court should have dismissed the lack of informed consent cause of action at the end of trial because "the plaintiff failed to present evidence establishing that an informed, reasonably prudent person would not have consented to the procedure"]; Innucci v Bauersachs, 201 AD2d 460, 460-461 [2d Dept 1994] [trial court properly found that the plaintiffs failed to present evidence at trial establishing that an informed, reasonably prudent person would not have consented to the procedure]; cf. James v Greenberg, 57 AD3d 849, 850 [2d Dept 2008] [trial court properly found that the plaintiff presented sufficient trial evidence that she would not have undergone procedure had she known of its risks, precisely because "the plaintiff testified that she would not have undergone the surgery had she known of those risks"]).

The court notes that, prior to the procedure that is the subject of this action, Laquaglia had performed three prior surgeries upon the plaintiff to remove ovarian teratomas, and that he commenced all of those procedures laparoscopically. In support of the instant motion, the plaintiff pointed only to her own vague, conclusory testimony that, had she been fully informed of the potential problems that actually arose in connection with the laparoscopic method that Laquaglia employed at the commencement of the subject procedure, she might have sought a second opinion, but she never testified, or even suggested that, had she been informed that the employment of a laparoscopic approach might increase the risk of injury, she never would have consented to that approach. Although the plaintiff now correctly argues that neither a lay witness such as herself, nor an expert witness, needs to invoke a talismanic phrase, such as "had I known the risks, I never would have consented to the procedure," this does not excuse her from adducing any evidence whatsoever that a reasonable patient, fully informed, would have insisted on commencing the subject surgery as an open procedure, let alone that such a patient would not have undergone the cystectomy in the first instance. This is a particularly apt conclusion here, since Laquaglia's surgery, although causing postoperative difficulties, was actually successful in removing the growth, enabling the plaintiff to retain her full fertility, and permitting her to give birth naturally to a child in January 2026.

A trial court does not commit error by declining to instruct the jury with respect to a theory underpinning a claim or an affirmative defense with respect to which the parties have adduced insufficient evidence to support that theory (see Cheung v New York City Tr. Auth., 106 AD3d 768, 769 [2d Dept 2013]; Deshommes v Hussain, 47 AD3d 869, 869 [2d Dept 2008]; Budimlic v New York City Hous. Auth., 200 AD2d 701, 702 [2d Dept 1994]; Senn v Scudieri, 165 AD2d 346, 355 [1st Dept 1991]). Although, contrary to the defendants' contention, the court concludes that the plaintiff adduced legally sufficient evidence that she was not fully informed of the risks and benefits of, and alternatives to, commencing her fourth ovarian cystectomy as a laparoscopic procedure and converting in intraoperatively to an open procedure if warranted, the court concludes that, contrary to the plaintiff's contentions, she did not adduce evidence sufficient to establish, let alone to permit a jury to infer, that she or any other reasonable person would not have undergone the procedure in that fashion.

As explained above, the plaintiff now claims that Laquaglia should have commenced this fourth procedure as an open procedure, and that the jury could and should have inferred from her testimony that a reasonable person in her situation would have insisted on the commencement of the subject procedure an open procedure, despite having consented to three prior laparoscopic procedures. Although Dr. Elariny testified that, in his opinion, Laquaglia should have given the plaintiff the opportunity to select whether to undergo her fourth procedure either as a laparoscopic procedure, or as an open procedure ab initio, he never opined or concluded that a patient in the plaintiff's situation, fully informed of the risks of both methods, would have refused the laparoscopic procedure. Moreover, as the defendants correctly pointed out, to successfully prosecute a lack of informed consent cause of action, a plaintiff must adduce evidence establishing that the defendant's failure to obtain his or her fully informed consent proximately caused or contributed to his or her injuries (see Russo v Mount Sinai Doctors Long Is., _____AD3d_____, 2026 NY Slip Op 05044, *5-6 [2d Dept, Aug. 16, 2026]; Balzola v Giese, 107 AD3d 587, 588-589 [1st Dept 2013]). The court notes that, in this respect, Dr. Elariny testified that, although an open approach at the commencement of the subject procedure "may" have avoided some injuries if it had been employed from the start, he did not identify which injuries may have been avoided, or that the employment of a laparoscopic approach actually caused those injuries in the first instance. Rather, in connection with the injuries that the plaintiff did sustain intraoperatively, he focused solely on the propriety of Laquaglia's conduct in repairing those injuries, and the further injuries that the plaintiff purportedly sustained as a consequence of the allegedly negligent repairs.

Based on the plaintiff's medical history, and the testimony of both the plaintiff and Dr. Elariny, the court concludes that a rational jury simply could not have inferred that the plaintiff would have insisted on commencing the subject procedure as an open procedure had she been informed that this fourth laparoscopic procedure might present intraoperative risks of bowel injury. The court further concludes that a rational jury could not have inferred that Laquaglia's purported failure fully to inform the plaintiff of the risks of commencing the fourth procedure laparoscopically caused or contributed to any of the injuries that she claimed, in this action, to have sustained as a result of the defendants' alleged wrongdoing.

The plaintiff's remaining contentions are without merit.

Accordingly, it is,

ORDERED that the plaintiff's motion to set aside the verdict is denied.

This constitutes the Decision and Order of the court.

DATE 9/2/2026

JOHN J. KELLEY, J.S.C.

John J. Kelley, J.