Kaplan v. Simmons

Lerner, J.,

dissents in a memorandum as follows: I respectfully dissent and would reverse the judgment, reinstate the cause of action for lack of informed consent and remand the matter to Supreme Court for trial of this cause of action.

Following a routine mammogram in 1992, plaintiff Sandra Kaplan, M.D. was diagnosed with breast cancer and referred to defendant Michael E Osborne, M.D., who performed a lumpectomy and recommended a course of radiation and chemotherapy. In February of 1995, plaintiff developed a small red “pimple” under her breast, which was later diagnosed by Dr. Osborne’s associate, defendant Rache Simmons, M.D., as a benign inclusion cyst. The “inclusion cyst” began to change in color and, in April of 1995, plaintiff consulted Dr. Osborne, who agreed with Dr. Simmons’s diagnosis and was unwilling to perform a biopsy. In July of 1995, at plaintiff’s insistence, Dr. Osborne biopsied *326the cyst, which was determined to be an angiosarcoma, a rare but aggressive form of skin cancer caused by radiation therapy. Although this type of cancer was not well recognized by oncologists prior to the 1980s, Dr. Osborne was well versed in its diagnosis and treatment, insofar as he and Dr. Simmons had coauthored an article on angiosarcoma in 1994.

Plaintiff had a morbid fear of cancer from the time of her mother’s early death from breast cancer. Moreover, plaintiffs sister had recently died from ovarian cancer, after which plaintiff opted to have her own ovaries prophylactically removed. After diagnosis of the angiosarcoma, plaintiff informed Dr. Osborne that she was willing to undergo a bilateral mastectomy, also as a prophylactic measure, to reduce the risk of metastasis. Dr. Osborne, however, recommended a quadrantectomy, a surgical procedure in which only one quarter of the breast, containing the angiosarcoma, is removed. Dr. Osborne performed the quadrantectomy in August of 1995. By May of 1996, the angiosarcoma had returned and had spread to the underlying breast tissue. A mastectomy was performed by another doctor.

Plaintiff subsequently commenced the instant action against Dr. Osborne and Dr. Simmons, asserting claims for medical malpractice and lack of informed consent. In particular, plaintiff alleged that Dr. Osborne failed to inform her of the aggressive nature of her disease, and of the risks and benefits associated with the quadrantectomy procedure. She also alleged that Dr. Osborne failed to disclose any alternative treatments for angiosarcoma, specifically mastectomy, thereby departing from accepted standards of medical practice.

During the trial of this matter, on the afternoon prior to summations, the trial court dismissed plaintiffs cause of action for lack of informed consent sua sponte. The jury was not charged on informed consent, and only the cause of action for medical malpractice was submitted for its determination. The jury returned a verdict in defendants’ favor and a judgment was thereafter entered, dismissing the complaint.

It is well settled that in order to recover damages for medical malpractice based on a lack of informed consent, the plaintiff must prove that the person providing the professional treatment failed to disclose to her the material risks, benefits and alternatives to the surgery which a reasonably prudent medical practitioner under similar circumstances would have disclosed, permitting the plaintiff to make a knowledgeable and informed decision. The plaintiff must also prove that a reasonably prudent person in his or her position would not have undergone the surgery at issue had he or she been fully informed, and that the *327lack of informed consent is a proximate cause of the injury or condition for which recovery is sought (Public Health Law § 2805-d [1], [3]; Nieves v Montefiore Med. Ctr., 305 AD2d 161, 164 [2003]; Romano v Colen, 305 AD2d 575 [2003]; see Davis v Nassau Ophthalmic Servs., 232 AD2d 358 [1996], lv denied 89 NY2d 814 [1997]).

Although a lack of informed consent must be supported by expert testimony as to whether the disclosure given was insufficient, no expert testimony is required to demonstrate that a reasonably prudent person in the plaintiffs position would not have undergone the surgery in question if he or she had been fully informed of the risks and benefits (Osorio v Brauner, 242 AD2d 511 [1997], lv denied 91 NY2d 813 [1998]). On this issue, plaintiffs testimony that she would not have agreed to the quadrantectomy had she been fully informed of the risks of recurrence, and her expert’s testimony that a mastectomy was the standard of care for treatment of angiosarcoma, were sufficient to present a question of fact requiring a determination by the jury as to whether a reasonably prudent person in plaintiffs position would not have agreed to the quadrantectomy (id.)

Viewing the testimony adduced at trial in the light most favorable to the plaintiff, I submit that the trial court erred in summarily dismissing the cause of action for lack of informed consent. Evidence was presented that Dr. Osborne, as an author on the subject, was well aware that mastectomy, rather than quadrantectomy, was the standard of care for the treatment of angiosarcoma, and that he failed to disclose this information to the plaintiff. In fact, he testified that he never discussed with plaintiff the aggressiveness of angiosarcoma, but relied on others to do so. His testimony that plaintiff had previously informed him that she would not undergo a mastectomy was refuted by her testimony that, in light of her family’s medical history, she was willing to undergo any medical procedure, no matter how drastic, to prolong her life, and that she had demonstrated same by having her healthy ovaries removed after her sister’s death from ovarian cancer. This question of fact was for the jury, not the court, to determine.

While the majority concedes that plaintiffs testimony may be sufficient to create a triable issue of fact for the jury, it goes on to further submit that the jury, in finding defendants free from liability due to their alleged malpractice, must necessarily have also determined the issue of informed consent in defendants’ favor without that issue being presented to it. Such an inferential conclusion is not supported by the trial record or by the absence of an appropriate instruction by the court.

*328In view of the foregoing, I submit that it cannot be found as a matter of law that plaintiff failed to establish that the consent was qualitatively insufficient, or that a reasonably prudent person in her position would not have undergone a mastectomy had she been accurately informed of her medical condition.