We dissent from that part of the majority’s opinion which affirms the dismissal of the claim for assault and battery and vote thatv said claim be remitted to the Court of Claims for an assessment of damhges.
The majority recognizes that claimant can recover damages for an assault if the operation was performed without her consent, at least in the absence of an emergency, and that an uninformed or invalid consent is tantamount to no consent at all. In order for an informed consent to be obtained, the person whose consent is sought must at least be informed of the hazards of the operation and of the available alternatives (Florentino v. Wenger, 19 N Y 2d 407, 413; Darrah v. Kite, 32 A D 2d 208, 211). Florentino involved an operation and there is stronger reason, in such a situation, for the imparting of information as to hazards, and alternatives, since the condition of the patient has been diagnosed and the general procedures to be followed are apparent. In the case of tests, investigation and exploration are still under way so that the hazards and alternatives are not as well known.
Aside from the question of the validity of any consent obtained from claimant, an adjudicated incompetent (cf. McCandless v. State of New York, 3 A D 2d 600, 606, affd. 4 N Y 2d 797; Darrah v. Kite, supra, p. 212), the record is barren of any evidence from which it could be concluded that her consent was informed. Claimant testified that no doctor ever discussed the operation with her; that she signed the consent form because the supervisor brought the paper and told her to sign it to get her eye fixed; that she did not read the form because she had to sign it anyway; and that she was not told that both.eyes were *391to be operated upon. The only proof in the record as to the information given to the claimant’s committee in securing his consent for the operation was contained in a letter1 from the director of the hospital to him which did not address itself to the hazards of the operation or to the available alternatives. The consent form, which they both signed, was no more enlightening. The only relevant information it provided was that the operation was for “ Bilateral Glaucoma.”
That the consent form contained inadequate information is obvious from the testimony of Dr. Porter, an ophthalmologist, who testified for claimant that, on the basis of the letter and consent form, he would conclude that only one eye was. being operated upon; that this was not sufficient information upon which to give an informed consent; and that in order to facilitate an informed consent, claimant and her committee should have been told. about the specific nature of her condition, the reasons surgery was required, the type of surgery to be done, the risks of the surgery and that the committee should have been told that claimant would prefer the operation to be done by a private ophthalmologist outside the hospital. Dr. Porter’s testimony was undisputed.
In its decision, the trial court concluded that “ [t]he burden of establishing that the consent was uninformed is on the claimant. There is no evidence to support that contention. Certainly the committee could have been called to testify as to the nature and extent of his consent.” All the proof in the record is to the effect that there was no informed consent and the court’s conclusion to the contrary is against the clear weight of the evidence (see Corratti v. State of New York, 20 A D 2d 166, 169; cf. Bradshaw v. State of New York, 24 A D 2d 930). There is no indication in the record that any further information, not available at trial, was provided to claimant’s committee. It appears undisputed that the committee was dead at the time of trial and no inference can be drawn, from the failure to call him as a witness. (See, generally, Richardson, Evidence [10th ed., Prince], § 92, pp. 65-68.) In fact, an inference could properly have been drawn against the State for its failure to produce Dr. Waugh, the hospital ophthalmologist who performed the operation, particularly in view of claimant’s unsuccessful' *392efforts to examine him before trial. The result of such an inference would have been to place greater weight on' the testimony advanced in favor of the claimant (see Noce v. Kaufman, 2 N Y 2d 347, 353; Bradshaw v. State of New York, supra; Laffin v. Ryan, 4 AD 2d 21, 24-26).
There is no reason to believe that the operation upon claimant was of an emergency nature, the undisputed testimony in the record being that the surgery was elective.
In Dorrah, it was stated (32 A D 2d 208, 211, supra): “ As the trespass on the body arises from the unlawful touching itself there need be no showing of negligence or malice and the plaintiff is entitled to any damages which flow from the unauthorized procedure regardless of the fact that the operation was performed with the utmost of care. The damages related to the cause of action for uninformed consent arise not because the procedure was performed unsatisfactorily, but because it was performed at all.”
Regarding the damages suffered by claimant as a result of the surgery, there was uncontradicted proof that to avoid psychosis she should have been warned that she would be blind for about two weeks after the operation; that she was surprised at being unable to see after the operation; that she remained blind for about 10 days; and that as a result of the operation claimant has developed a fixation about someone assaulting her about her eyes. Claimant is entitled to damages for such injuries as there may have been as a result of the assault and battery and, accordingly, this claim should be remitted to the Court of Claims for an assessment of such damages.
Herlihy, P. J., Greenblott and Kane, JJ., concur in Per Curiam opinion; Cooke and Main, JJ., dissent in part and concur in part in an opinion by Cooke, J.
Judgment affirmed, without costs.
. The letter stated: “Your ward, the above-named patient, has been under the care of our Opthaknologist [sic] because of glaucoma and he recommended an eye operation to preserve her remaining vision.
“ Kindly date, sign and have witnessed, the attached Permission for Operation blank and return it to the hospital at your earliest convenience so that this operative procedure may be performed without undue dplay.”