(dissenting). I dissent and would affirm the judgment appealed from. The action was brought by plaintiffs-appellants against the defendants-respondents to recover damages for injuries allegedly sustained by plaintiff, Robert Gar-one (hereinafter plaintiff) as a result of which his left eye was eventually removed. The action against Roberts’ Technical and Trade School, Inc. (Roberts), alleged negligence by Roberts in failing to supply protective safety goggles to plaintiff, a student at the school, by reason of which he sustained an injury to his left eye. The actions with respect to the other defendants were grounded in negligence and malpractice.
At the close of plaintiffs’ proof, the trial court granted the motion of defendant the Presbyterian Hospital to dismiss the complaint as to it, and no issue is made by plaintiffs with regard to such dismissal. At the conclusion of the entire case, the trial court granted motions by the several defendants to dismiss the complaint as to them and dismissed the complaint as to such defendants with the exception of Roberts. Subsequently, the jury returned a verdict in favor of defendant Roberts.
On this appeal the majority would reverse and order a new trial as to defendant George R. Merriam, Jr., chiefly, if not entirely, on the issue of informed consent.
In order to determine whether such action (i.e. the dismissal as to Dr. Merriam) was warranted, it is necessary to examine briefly the role played by him in the unfortunate occurrence.
Plaintiff, then age 17 years, claimed that on May 13, 1964, while he was hammering the dents out of an automobile fender, a piece of metal flew from the fender and penetrated his left eye. He had enrolled in the course on February 3, 1964, and completed the course in July, 1964, receiving a certificate of accomplishment.
While there is some conflict in the evidence as to what actually happened on May 13, 1964, as to whether a spark or a sliver of metal struck plaintiff’s eye at the school, or whether some foreign object entered his eye on his way to the school, the sequence of events thereafter is fairly well outlined.
Plaintiff was sent to a Dr. Dubinsky, who was dead at the time of trial but whose office record, received in evidence, read as follows: "5/13/64. Spot in front of O.S. [meaning osculi sinistra or left eye]. Conjunctiva clear, cornea clear. Does not stain with fluorescine. Small vitreous floater. Fundus normal. *314Advised as to nature of condition and suggested to see private M.D. for further observation.”
The then infant plaintiff returned to school the following day and according to his testimony, the pain and bloodshot condition ceased after four or five days. He next saw a doctor in the fall of 1964, when his father took him to see an optometrist, Dr. Leshne, in New Jersey. Plaintiff again saw this optometrist on May 6, 1965, at which time the doctor recommended that he see Dr. Merriam, an ophthalmologist. (In a deposition Dr. Leshne recalled only one visit by plaintiff).
Dr. Merriam saw plaintiff on May 28, 1965, and again on June 24, 1965. Thereafter, plaintiff was admitted to the Presbyterian Hospital on August 17, 1965, under the care of Dr. Merriam. Surgery was performed on his left eye and he was discharged August 26, 1965. Plaintiff claims that he had some vision in his eye prior to the operation, but none thereafter. He next saw Dr. Merriam on September 9, 1965, when drops were prescribed, and again on November 22, 1965, when, plaintiff testified, there was no light perception. On December 27, 1965, he was seen by an associate of Dr. Merriam. Thereafter, on January 3, 1966, plaintiff was admitted to Englewood Hospital and surgery was performed on January 4, 1966, by a Dr. Eisenhauer, who removed the eye.
According to the testimony of Dr. Merriam, then testifying as the plaintiffs’ expert witness, when he first saw plaintiff on May 28, 1965, his vision in the left eye was considerably impaired and there was a foreign body at the posterior pole of the eye which was surrounded by a considerable reaction and scarring, with swelling some distance from the foreign body. Photographs and X rays were taken of the eye which showed the foreign body. The foreign body was identified as a metallic object and Dr. Merriam testified that an attempted magnet extraction operation would be the general accepted method of removal, "if necessary, followed by attempt to, directly under direct visualization, to remove the foreign body, which is what we did.” It should be remembered that Dr. Merriam was the first eye physician seen by plaintiff and the first visit was almost one year after the occurrence.
On cross-examination, plaintiff, after first denying, recalled that Dr. Merriam told him that he, Dr. Merriam, would first attempt to take the foreign body out by means of a magnet, if that failed, there would be an incision on the eyeball and he would use a forceps or tweezers to extract the foreign body.
*315Mrs. Garone who usually accompanied plaintiff on his visits to Dr. Merriam, on cross-examination, experienced some difficulty in recalling certain events, but eventually recalled X rays being taken by Dr. Merriam on the first visit; the giving of eye drops to calm down the eye; being told that the eye was in bad shape; that an operation was necessary and that a magnet and possibly tweezers or forceps would be used; that it was a difficult situation because the foreign body had been in the eye for a long time; and, also that, if the foreign body remained, plaintiff would eventually lose the vision in that eye and perhaps the eye itself. The witness knew that not every operation always succeeds but believed this operation would succeed because of her confidence in Dr. Merriam. The witness testified that she would discuss with her husband the results of the visits. Both she and her husband testified Dr. Merriam assured them that Robert would be a new boy after the operation. Mr. Garone said he was not told of any danger or possibility of blindness.
Plaintiffs raise two major points on this appeal with respect to Dr. Merriam: (1) that he advised the use of a magnet prior to hazardous surgery and there was no proof that a magnet was used; (2) there was no proof of an informed consent by plaintiff or his parents to the operation.
As to the use of a magnet, the Presbyterian Hospital record dated June 24, 1965, read, in part: "Advice: Extraction (Magnet) intraocular foreign body O.S. General.” On the discharge sheet, dated August 26, 1965, eight days after the operation, there appears in Dr. Merriam’s handwriting, the following: "Intraocular Metallic Foreign Body, Left (old) Uveitis, Mild, Left. Op — Attempted Extraction of Foreign Body. Magnet and Direct. Signed-Merriam.” Additionally, there was testimony by the doctors and nurse who assisted that a magnet was used. There is no evidence to the contrary. Plaintiffs urge that a report written sometime after the operation by one of the assisting surgeons failed to make reference to a magnet (though it did refer to forceps) and this proves or, at least indicates that a magnet was not used. The failure of the report to make direct reference to a magnet was fully explained. The contention of plaintiffs with reference thereto is rejected. Moreover, there was no expert testimony that a magnet had to be used, or that the failure to use one, if such be assumed, was a deviation, in this case, from accepted *316practice, or proximately brought about the result complained of. An unsuccessful operation does not establish malpractice.
While the pleadings did not refer to informed consent, the issue was raised at trial and must be considered. The trial court has discretionary power to permit pleadings to be amended before or after judgment to conform to the evidence (CPLR 3025, subd [c]). When no prejudice is shown the amendment may be allowed during or even after trial (Dittmar Explosives v A. E. Ottaviano, Inc., 20 NY2d 498, 502-503). Indeed, on appeal, the court may sua sponte find the facts sufficient to sustain a cause of action other than that pleaded (Diemer v Diemer, 8 NY2d 206), or may deem the pleadings amended to conform to the proof (Di Rosse v Wein, 24 AD2d 510).
The question then is whether the proof here establishes at least prima facie, a lack of informed consent? In my view it does not.
Since any determination of whether or not there was an informed consent is not dependent solely upon an acknowledgment or admission by the parties involved, all factors relevant to the issue must be considered. In the instant case, these factors would include, but would not be restricted to: the information admittedly received by Mrs. Garone from Dr. Merriam; the reasonableness under the circumstances of an assumption that Mrs. Garone would have transmitted this information to her husband, the infant plaintiff’s father; the knowledge possessed by the parents of their son’s complaints regarding the continuing pain and the deteriorating condition of his eye; the general awareness of the element of risk in almost any operation — a risk intensified when such a delicate organ as the eye is involved; and, the common knowledge that not every operation is successful.
Mrs. Garone’s testimony indicated that she was thoroughly aware of the seriousness of the situation, and the possibility of blindness if the object were not removed. There is evidence that after visits to Dr. Merriam there were home discussions between the plaintiffs and Mrs. Garone. A mere assertion by Mrs. Garone that, despite the obvious and explained risks, she did not believe the operation would not be successful, does not establish a lack of informed consent. In light of Mr. Garone’s acknowledgment of home discussions and his knowledge of his *317son’s complaints, his testimony that he was never "told that there was any risk involved,” strains credulity. Mrs. Garone’s knowledge, under the circumstances here present, could fairly be imputed to him. Mr. Garone testified he never spoke to Dr. Merriam, but that was taken care of by his wife who would discuss with him what she had discussed with Dr. Merriam. On redirect examination Mr. Garone recalled saying, at an examination before trial, that Dr. Merriam had told the witness and Mrs. Garone that he was "going to use a magnet or something and try to get the foreign body out.” Mr. Garone signed the consent order.
The evidence establishes a reasonable disclosure by Dr. Merriam of the risk involved. Disclosure of minute details of the operation could hardly have been warranted or expected. He must only warn the patient of the known risks of the proposed treatment so that an intelligent decision can be made. Expert testimony should be offered by plaintiffs relative to the extent of disclosure required under the circumstances of a particular case, and whether that standard was met (see Petterson v Lynch, 59 Misc 2d 469). No such expert testimony was offered. Further, it appears from the record that there was no alternative choice if Robert were not to become blind. With confidence in Dr. Merriam, consent was therefore given. Even if it be urged that there was not a fully informed consent, there is no evidence that such lack or deficiency proximately caused the unfortunate result. Nor is there evidence that this operation was not that customarily performed under like or similar circumstances (cf. Fiorentino v Wenger, 19 NY2d 407).
The judgment appealed from should be affirmed.
Murphy and Lupiano, JJ., concur with Capozzoli, J.; Stevens, P. J., and Lane, J., dissent in an opinion by Stevens, P. J.
Judgment, Supreme Court, New York County entered on February 27, 1973, modified, on the law and on the facts, to the extent of reversing the dismissal as against Dr. George R. Merriam, Jr., and directing a new trial as to that defendant, and in all other respects the judgment is affirmed, without costs and without disbursements.