Lack of Informed Consent Claim Reinstated for Breast Reconstruction/Augmentation Patient

On August 3, 2016 an Appellate Court overruled a Westchester County, Supreme Court Justice and reinstated a lack of informed consent claim filed by a plaintiff who was not represented by an attorney. These "pro se" plaintiff malpractice cases rarely reach the trial stage and are dismissed on the merits; or, dismissed due to the lack of an experienced malpractice attorney who knows how to present evidentiary proof and expert affidavits to oppose the doctor/hospital's pre-trial dismissal motion. 

The plaintiff was diagnosed with cancer and was treated with a lumpectomy and lymph node resection. The plaintiff then underwent a breast reconstructive and augmentation surgery performed by the defendant surgeon. The plaintiff claimed that she told the surgeon "she wanted gel 'gummy bear' implants in size B or small C cup, but, instead, received 'liquid gel' silicone implants in a size D cup." An important issue described below is just what did the plaintiff sign off on? She, like everyone undergoing surgery, signed a consent form authorizing the procedure. But what information was this patient provided on the document bearing her signature?

The surgeon's attorney submitted an expert affidavit from a physician who claimed that it was within accepted standards of care for the surgeon to "determine the exact size of the implants at the time of the operation in order to achieve proper symmetry". Since the plaintiff did not submit an experts affidavit to refute the surgeon's expert affidavit, the Appellate Court found that any malpractice claim based on the size of the implant was properly dismissed. However, the dismissal of the lack of informed consent claim was found improper because the surgeon's expert failed to assert "that the consent form used complied with the prevailing standard for such disclosures applicable to reasonable practitioners performing the same kind of surgery." 

The Appellate Court stated that while the surgeon "could not be held liable for lack of informed consent based upon the size of the implants used",  a jury at trial could find a lack of informed consent based on the type of implants used. The consent form signed by the plaintiff disclosed that she would receive a gel implant but neglected to describe the particular brand or manufacturer of the implants. For those reasons, this plaintiff will be allowed to present a greatly limited case to a jury at trial on the sole theory of a lack of informed consent. Jane Doe v Plastic and Reconstructive Surgery, PC, 2016 N.Y. Slip Op. 05710

Lack of Informed Consent

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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