A patient that suffers harm due to a medical procedure may seek to recover damages via a medical malpractice lawsuit. In some instances, an injured patient may not only be able to allege the surgeon who performed the surgery is liable for medical negligence but may also be able to pursue a lack of informed consent claim as well. Negligence and informed consent claims have different elements, and merely because plaintiffs can proceed with one claim does not mean they will be able to proceed with another, as demonstrated in a recent New York opinion. If you suffered harm due to the carelessness of a surgeon, it is smart to speak to a Rochester medical malpractice lawyer about your options for seeking damages.
The Plaintiff’s Harm
It is alleged that the defendant performed a total left hip replacement surgery on the plaintiff in August of 2014. The plaintiff subsequently sustained damage to his left femoral nerve, which he asserted was due to the defendant’s negligence during the procedure. Thus, he filed a medical malpractice complaint against the defendant in late 2015, in which he set forth medical negligence and lack of informed consent claims. The defendant moved for summary judgment on both claims, asking the trial court to dismiss the case. The trial court denied the motion, and the defendant appealed.
Establishing Triable Issues of Fact in Medical Negligence and Lack of Informed Consent Claims
The appellate court affirmed the trial court’s order as to the lack of informed consent claim but denied it with regard to the medical negligence claim. The appellate court explained that the evidence of the case, including the plaintiff’s deposition, the written consent form signed by the plaintiff, and the plaintiff’s medical records, demonstrated that the defendant advised him of the benefits, risks, and alternatives to the surgery. Thus, the appellate court found that the plaintiff failed to demonstrate there was a triable question of fact on the lack of informed consent claim and reversed the trial court ruling. Continue reading