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New York Court Clarifies Statute of Limitations for Lack of Informed Consent Claims

All civil claims have a statute of limitations under which the injured party must pursue his or her claim. The statute of limitations for your claim depends on the nature of the harm alleged. In cases involving surgical malpractice, if the plaintiff sets forth claims of both intentional tort and negligence, different statutes of limitations may apply to each claim. This was discussed by a New York district court, in a recent case in which the plaintiff alleged both negligence and an intentional tort following her surgeon’s alleged failure to obtain informed consent.  If you were harmed due to your doctor’s failure to provide you with informed consent prior to your surgical procedure you should consult an experienced Rochester surgical malpractice attorney as soon as possible to prevent the waiver of your right to recover.

Reportedly, the plaintiff underwent multiple plastic surgery procedures that were performed by the defendant. Following the procedures, the plaintiff filed a pro se lawsuit against the defendant surgeon, alleging claims of negligence and intentional tort due to her surgeon’s failure to obtain informed consent. Specifically, she alleged the defendant used tools on her face when she requested that he not do so, and injected fat in areas of her body without her consent.

The defendant filed a motion to dismiss, arguing that the plaintiff’s claims were barred by the statute of limitations. The motion was referred to another judge, who recommended that the motion be denied. The defendant filed objections to the recommendations. Specifically, the defendant objected to the finding that the plaintiff set forth a negligence claim based on the lack of informed consent. Rather, the defendant argued that the plaintiff only asserted a claim for intentional tort in the manner of assault and battery, which had a one-year statute of limitations.

The Statute of Limitations for Lack of Informed Consent

The court noted that while traditionally a claim for injuries caused by lack of informed consent constituted an assault and battery claim, in the modern view a doctor’s failure to inform his patient of the risks of a surgical procedure was a form of medical malpractice based on negligence. The court pointed out that the plaintiff’s complaint alleged she consented to a surgical procedure without being fully informed of the consequences and risks involved. The court found that this adequately set forth a claim of negligence based on the lack of informed consent.

The court noted that the plaintiff’s claim was distinguishable from a claim in which a procedure was performed absent any consent whatsoever, which could be construed as intentional conduct. Rather, the plaintiff’s claim alleged that the defendant rendered treatment beyond the scope of her consent, thus stating a negligence claim. Accordingly, the court found that the two-and-a-half-year statute of limitations for medical malpractice claims applied and overruled the defendant’s objections.

Meet with a Seasoned Rochester Surgical Malpractice Attorney

If your surgeon failed to obtain your informed consent prior to your surgical procedure and you suffered harm as a result you may be able to pursue a surgical malpractice claim against your surgeon and should meet with a seasoned Rochester surgical malpractice attorney regarding your case. At DeFrancisco & Falgiatano Personal Injury Lawyers our capable medical malpractice attorneys will aggressively pursue any compensation you may be owed for the harm caused by your physician’s surgical malpractice. You can reach us at 833-200-2000 or through our online form to set up a confidential and free meeting.



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