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Court Discusses Establishing Lack of Informed Consent Under New York Law

Prior to offering their patients treatment, such as surgical procedures, doctors are required to explain the potential side effects of the course of care and explain alternative treatments. If they do not, and the patient subsequently suffers from complications or issues, the plaintiff may be able to assert medical malpractice claims against the physician, alleging that they failed to obtain their informed consent. Recently, a New York court explained liability for the failure to obtain a patient’s informed consent, in a matter in which it ultimately determined there was sufficient evidence to proceed to trial. If you suffered harm due to your treatment provider’s failure to obtain your informed consent, you might be owed compensation, and you should speak to a Rochester medical malpractice lawyer as soon as possible.

The Plaintiff’s Claims

It is reported that the plaintiff treated with the defendant doctor at the defendant hospital for back issues that arose following a car accident. The defendant doctor initially offered the plaintiff conservative treatment but later recommended that he undergo a laminectomy with possible fusion at the lumbar level of his spine. The plaintiff accepted the defendant doctor’s recommendation and scheduled the surgery.

Allegedly, on the day of the surgery, the defendant doctor advised the plaintiff he had changed his mind regarding the laminectomy and recommended that the plaintiff undergo the implantation of certain devices in his back. The plaintiff agreed after a brief discussion and underwent the procedure. He continued to experience pain and symptoms and sought care from another doctor. The second doctor stated his condition did not warrant the intervention he received and subsequently surgically removed the devices. The plaintiff then filed a lawsuit against the defendants alleging, among other things, that the defendant doctor committed malpractice by failing to obtain his informed consent. The defendants moved for summary judgment, and the court granted the motion, after which the plaintiff appealed.

Establishing Lack of Informed Consent Under New York Law

Upon review, the appellate court reversed the trial court ruling with regard to the lack of informed consent claim. The court explained that a plaintiff alleging lack of informed consent must establish that the defendant failed to disclose alternatives to the treatment provided or the risks associated with such treatment and that a reasonably cautious person would not have undergone the procedure if they had known of the risks.

Further, the plaintiff must demonstrate that the lack of informed consent proximately caused their harm. In the subject case, the appellate court found that the defendant doctor failed to show, prima facie, that he obtained the plaintiff’s informed consent prior to implanting the devices. As such, the appellate court reversed the trial court ruling with regard to that claim.

Meet with a Dedicated Rochester Attorney

Patients have the right to make informed decisions regarding their care, and if their doctors fail to thoroughly advise them of the risks associated with a procedure, they can be held accountable. If you sustained losses due to a doctor’s failure to obtain your informed consent, you have the right to seek damages, and you should meet with an attorney. The skillful Rochester medical malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers can assess the circumstances surrounding your harm and inform you of what claims you may be able to pursue. You can reach us via the online form or by calling us at 833-200-2000 to set up a conference.



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