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Court Explains Establishing Liability for Lack of Informed Consent in Medical Malpractice Cases

Most surgeries carry some potential for harm, but many patients determine that the benefits outweigh the risks. Patients must be fully informed of the possible side effects of procedures, though, otherwise, they cannot make educated decisions regarding whether to proceed. As such, doctors who fail to obtain their patient’s informed consent prior to rendering treatment may be held liable for medical malpractice. Recently, a New York court issued an opinion discussing the elements of a lack of informed consent claim in a case in which it ultimately determined the plaintiff set forth adequate evidence a jury trial was necessary. If you sustained injuries due to your doctor’s failure to obtain your informed consent, it is prudent to confer with a Rochester medical malpractice lawyer about your rights.

The Plaintiff’s Harm

It is reported that the defendant operated on the plaintiff. Immediately after the procedure was complete, the plaintiff began experiencing tingling, numbness, and pain in his left leg. He was later diagnosed with permanent nerve damage. He then filed a lawsuit against the defendant, setting forth a lack of informed consent claim. After the parties completed discovery, the defendant moved for dismissal of the plaintiff’s complaint via summary judgment. The trial court denied the defendant’s motion, and she appealed.

Establishing Liability for Lack of Informed Consent

After reviewing the evidence of record, the appellate court affirmed the trial court ruling. The court explained that under New York law, a plaintiff setting forth a medical malpractice claim premised on a lack of informed consent must establish that the defendant failed to disclose the benefits, risks, and alternatives of the procedure that a reasonable physician would have disclosed. Further, the plaintiff has to show that a reasonable individual in the plaintiff’s shoes would not have elected to undergo the procedure if fully informed of the risks and alternatives.

In the subject case, the court found that the plaintiff adequately set forth the elements of a lack of informed consent claim in his complaint. In the defendant’s motion, though, she failed to show that she advised the plaintiff of the risks of the procedure. Specifically, she relied on her own testimony and affidavit in support of her motion. The court noted that while the defendant provided a consent form which she alleged she gave to the plaintiff, it was not signed or initialed by the plaintiff. Thus, the court found that there was a triable issue of fact as to whether the defendant obtained the plaintiff’s informed consent and affirmed the trial court ruling.

Speak to an Experienced Rochester Attorney

Doctors have an obligation to advise their patients of the potential adverse outcomes of procedures, and if they fail to do so, they can be held accountable if their patients subsequently suffer harm. If you were hurt by a doctor’s failure to obtain your informed consent prior to surgery, it is smart to meet with a lawyer about your options. The experienced Rochester attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers are dedicated to helping people injured by lack of informed consent in the pursuit of damages, and if you hire us, we will advocate zealously on your behalf. You can reach us at 833-200-2000 or through the form online to set up a conference.


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