New York Lack of Informed Consent Claim Survives on Appeal

Plaintiff, Jacob Lavi, and his wife, brought a lawsuit against NYU Hospitals Center and endocrinologist Barry Schuval, to recover damages for medical malpractice and lack of informed consent. After receiving testosterone replacement therapy by a treating endocrinologist, plaintiff was diagnosed with prostate cancer. The plaintiffs bring suit against the defendants for a failure to warn the patient of foreseeable risks associated with the treatment.

Mr. Lavi claimed that the endocrinologist prescribed testosterone replacement therapy without informing him of the risks, hazards, and alternatives to the therapy. Since he was unaware of the risks associated with the treatment, the plaintiff alleges that he was prevented from giving informed consent.

Generally, in medical malpractice cases where a plaintiff alleges lack of informed consent, a plaintiff must prove three important elements. First, that the person providing the professional treatment failed to disclose alternatives and failed to inform the patient of reasonably foreseeable risks associated with the treatment and that a reasonably prudent physician would have disclosed such risks to the patient in similar circumstances. Second, the plaintiff must establish that a patient in the same position, would not have undergone treatment if he or she had been informed. Finally, the lack of informed consent was the proximate cause of the injury. Lavi v. NYU Hospitals Center, et al., 133 A.D.3d 830, 832 (2nd Dept. 2015).

In order for a court to grant a defendant’s motion for summary judgment, the defendant must establish that there is no triable issue of material fact and that a reasonable jury could not find in favor of the plaintiff. However, if a court finds that there is any question of fact or doubt as to a material issue, then the case must not be dismissed and the issues must be decided by a jury.

Here, the Supreme Court, Nassau County granted the defendant’s motion for summary judgment to dismiss the plaintiff’s cause of action on both medical malpractice and lack of informed consent grounds. However, on appeal, the Appellate Court found that the Supreme Court erroneously granted defendant’s motion for summary judgment on the ground of lack of informed consent.

The Appellate Division dismissed the cause of action as to the medical malpractice claim because the defendants established that the treatment provided by the endocrinologist, was in accordance with good and accepted standards of the medical practice. The defendants submitted an affidavit from an expert endocrinologist who supported the defendant’s position. Meanwhile, the court held that the testimony offered by plaintiff’s expert did not raise a triable issue of fact to refute the defendant’s expert. The court noted that the plaintiff’s expert was not familiar with the relevant literature or standards of care in such a specialized area of practice, endocrinology. The plaintiff’s expert was a pathologist. With respect to the medical malpractice claim, the plaintiff failed to lay a proper foundation for his expert which did not support the reliability of the expert’s opinion. Therefore, the court upheld the Supreme Court’s decision and dismissed plaintiff’s malpractice cause of action.

However, the Appellate court did deny the defendant’s motion for summary judgment for lack of informed consent. As the court noted, the purpose of informed consent is to correct a physician’s failure to disclose to the patient alternatives, foreseeable risks, and benefits involved with receiving a particular treatment. The standard of care is whether a reasonably prudent physician would have disclose such alternatives, risks, and benefits in similar circumstances.

Here, the treating endocrinologist testified that he informed the plaintiff about the risks, benefits, and alternatives of the treatment. However, the plaintiff testified that he was never explained of the alternatives, risks, or benefits of the medications—nor was he informed of any side effects. Since the testimony of both parties gives rise to a triable issue of fact, the court held the matter should be resolved by the jury.

The medical malpractice attorneys at Gallivan & Gallivan have been protecting the rights of medical malpractice victims for over 30 years.  Call us today if you believe you were injured as a result of a medical error.

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Lavi v. NYU Hospitals Center, et al., 133 A.D.3d 830 (2nd Dept. 2015).

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