Rymer v Bernstein
Attorneys and Parties
Brief Summary
Medical malpractice—lack of informed consent for foot/ankle surgery, including an allegedly unnecessary bunionectomy.
Granted the defendant summary judgment dismissing the lack of informed consent cause of action.
The grant of summary judgment dismissing the lack of informed consent claim.
The defendant failed to meet his prima facie burden. A signed consent form alone was insufficient, and the record did not establish adequate disclosure of risks and alternatives (including materials used and procedures) or that the non-consented procedure was not a proximate cause of injury; thus summary judgment had to be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
Background
The plaintiff alleged that, in addition to agreed-upon reconstructive work on her foot and ankle, the defendant performed an unnecessary bunionectomy without obtaining informed consent. She commenced suit in April 2019 for medical malpractice and lack of informed consent. After discovery, the defendant moved for summary judgment on the informed consent claim.
Lower Court Decision
The Supreme Court, Queens County (order entered February 16, 2023), granted the defendant's motion insofar as it sought summary judgment dismissing the lack of informed consent cause of action.
Appellate Division Reversal
Reversed insofar as appealed from; the branch of the defendant’s motion for summary judgment dismissing the lack of informed consent cause of action is denied. The defendant did not establish prima facie that adequate risk/alternative disclosures were made or that the procedure performed without informed consent was not a proximate cause of injury; a signed consent form alone does not suffice.
Legal Significance
Reaffirms New York’s burden-shifting framework for lack of informed consent claims: defendants seeking summary judgment must show detailed disclosure of reasonably foreseeable risks and alternatives and/or negate proximate cause; a signed consent form, without proof of adequate disclosure, is insufficient (see Mattocks v Ellant, 231 AD3d 813; Hall v Bolognese, 210 AD3d 958). If the movant fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposition (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
In New York, a physician cannot obtain summary judgment on a lack of informed consent claim merely by producing a signed consent form; the physician must demonstrate adequate disclosure of risks and alternatives (and address proximate cause), or the motion will be denied.