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New York Court Discusses Elements of Medical Negligence and Lack of Informed Consent Claims

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.

The appellate court found that the plaintiff adequately demonstrated a triable issue of fact existed on the medical negligence claim as required to withstand summary judgment, however. The appellate court explained that the defendant demonstrated, prima facie, his right to judgment as a matter of law via an expert affirmation stating he complied with the standard of care and that any deviation did not cause the plaintiff’s harm. In response, though, the plaintiff’s expert opined that the defendant deviated from the standard of care during the surgery and harmed the plaintiff as a result. Thus, the appellate court affirmed the trial court ruling with regard to the medical negligence claim.

Meet with a Dedicated Rochester Attorney

Surgeons must not only perform procedures with reasonable care, but they must also advise patients of the potential risks of a procedure, and if they do not, they should be held liable. If you were harmed by a negligent surgeon, you should speak to a lawyer as soon as possible. The dedicated Rochester surgical malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers are proficient at helping people harmed by incompetent medical care in the pursuit of damages, and if you hire them, they will work tirelessly on your behalf. You can reach us at 833-200-2000 or via the form online to set up a conference.


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