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