ANDREACH ANDREACH v. New York Blood Center, Inc., Defendant.

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Supreme Court, Appellate Division, First Department, New York.

Benjamin W. ANDREACH, an Infant, by His Parents and Natural Guardians, Maria ANDREACH, et al., Plaintiffs-Respondents, v. MOUNT SINAI MEDICAL CENTER, et al., Defendants-Appellants, New York Blood Center, Inc., Defendant.

Decided: August 27, 1998

Before MILONAS, J.P., ELLERIN, WILLIAMS, TOM and MAZZARELLI, JJ. Thomas F. Meagher, for Plaintiffs-Respondents. Richard E. Lerner, Ellen B. Fishman, for Defendants-Appellants.

Order, Supreme Court, New York County (Stanley Sklar, J.), entered on or about June 25, 1997, which, inter alia, denied defendants' motions for summary judgment dismissing plaintiffs' cause of action for lack of informed consent, and order, same court and Justice, entered January 15, 1998, which, upon granting reargument/renewal, adhered to the prior order, unanimously affirmed, without costs.

Issues of fact exist as to whether a reasonable practitioner would have advised plaintiffs of the reasonably foreseeable risks and benefits of an anonymous blood transfusion from a blood bank and any alternatives thereto, in particular, “directed donation”, i.e., blood donated by a relative or friend of the patient, and, if so, whether defendants failed to communicate such information (Public Health Law § 2805-d[1];  see, Shkolnik v. Hospital for Joint Diseases Orthopaedic Inst., 211 A.D.2d 347, 350, 627 N.Y.S.2d 353, lv. denied 87 N.Y.2d 895, 640 N.Y.S.2d 875, 663 N.E.2d 916).   There are also issues of fact as to whether plaintiffs could have found a suitable donor had they been sufficiently apprised of the directed donor option, whether defendant Rica G. Arnon was acting in her capacity as an employee of only defendant Mount Sinai Medical Center or both Mt. Sinai and defendant New York City Health and Hospital Corp., and whether there was agency by estoppel with respect to the latter.