In moving for summary judgment dismissing the medical malpractice cause of action, Dr. Katlowitz submitted the purported affirmation of expert Dr. Peter Schlegel. The statement by Dr.
As to the lack of informed consent cause of action asserted against Dr. Katlowitz, he failed to establish his prima facie entitlement to summary judgment since both he and his expert “failed to allege that a reasonably prudent person in the plaintiffs position would not have declined to undergo the procedure in question if he or she had been fully informed” (Baez v Lockridge, 259 AD2d 573, 573 [1999]; see Haggerty v Wyeth Ayerst Pharms., 11 AD3d 511, 512-513 [2004]; Colon v Klindt, 302 AD2d 551, 553 [2003]; Catechis v Corines, 242 AD2d 519 [1997]; Public Health Law § 2805-d [1], [3]). Thus, Dr. Katlowitz is not entitled to summary judgment dismissing the lack of informed consent cause of action regardless of the adequacy of the plaintiffs’ opposing papers (see Colon v Klindt, 302 AD2d 551 [2003]; Catechis v Corines, 242 AD2d 519 [1997]).
Dr. Katlowitz’s argument that he was under no duty to disclose the risk of nerve injury because it was a rare complication and therefore not reasonably foreseeable (see Public Health Law § 2805-d [1], [3]) is raised for the first time on appeal and thus not properly before this Court (see Rotundo v S & C Magnetic Resonance Imaging, 255 AD2d 573, 574 [1998]).
The complaint, however, should have been dismissed insofar as asserted against Dr. Lehman and Maimonides. “A resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene” (Soto v Andaz, 8 AD3d 470, 471 [2004]; see Toth v Bloshinsky, 39 AD3d 848 [2007]; Cook v Reisner, 295 AD2d 466 [2002]; Filippone v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 253 AD2d 616 [1998]).
Here, Dr. Lehman and Maimonides satisfied their initial burden by submitting both physicians’ deposition testimony and
In opposition, the plaintiffs failed to raise a triable issue of fact. “Although the evidence demonstrated that [Dr. Lehman] played an active role in [Muniz’s] procedure, it did not demonstrate the exercise of independent medical judgment” (Soto v Andaz, 8 AD3d at 471; see Crawford v Sorkin, 41 AD3d 278 [2007]; Walter v Betancourt, 283 AD2d 223 [2001]). In addition, the plaintiffs did not raise a triable issue of fact as to whether Dr. Katlowitz’s directions “so greatly departed from normal practice” that Dr. Lehman should be held liable for failing to intervene (Cook v Reisner, 295 AD2d at 467; see Welch v Scheinfeld, 21 AD3d 802, 808 [2005]; Soto v Andaz, 8 AD3d at 471-472). Indeed, the plaintiffs’ expert did not even mention Dr. Lehman (cf. Petty v Pilgrim, 22 AD3d 478 [2005]).
Accordingly, the Supreme Court erred in denying those branches of the defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against Dr. Lehman and Maimonides. Spolzino, J.P., Santucci, Angiolillo and Balkin, JJ., concur.