New York Law Review

Tag: informed consent

  • Lynn G. v. Hugo, 96 N.Y.2d 306 (2001): Establishing Lack of Informed Consent in Cosmetic Surgery

    Lynn G. v. Hugo, 96 N.Y.2d 306 (2001)

    In a medical malpractice case alleging lack of informed consent for cosmetic surgery, a plaintiff must present sufficient evidence that they suffered from a mental condition impairing their capacity to consent and that the physician failed to disclose reasonable alternative treatments to overcome a motion for summary judgment.

    Summary

    Lynn G. sued Dr. Norman Hugo for medical malpractice and lack of informed consent regarding a liposuction and abdominoplasty. She claimed she suffered from Body Dysmorphic Disorder (BDD), impairing her ability to consent, and that Dr. Hugo failed to inform her of less invasive alternatives. The New York Court of Appeals reversed the lower courts’ denial of summary judgment for Dr. Hugo, holding that Lynn G. failed to provide sufficient evidence of BDD or that Dr. Hugo failed to disclose reasonable alternatives, thus failing to raise a triable issue of fact.

    Facts

    Lynn G. consulted Dr. Hugo, a plastic surgeon, about 50 times over six years for various cosmetic procedures, including eyelid surgery and facial liposuctions. She underwent liposuction to correct her stomach “pouch”. Prior to the liposuction, Dr. Hugo discussed the risks, including scarring, and Lynn G. signed a consent form. The liposuction was unsuccessful, leading Lynn G. to undergo a full abdominoplasty. Dr. Hugo informed her of the risks, including “ugly scars,” and she signed another consent form. Lynn G. later complained about an unsightly scar.

    Procedural History

    Lynn G. and her husband sued Dr. Hugo, alleging lack of informed consent and medical malpractice. The Supreme Court denied Dr. Hugo’s motion for summary judgment, finding factual issues. The Appellate Division affirmed. The New York Court of Appeals reversed, granting Dr. Hugo’s motion for summary judgment.

    Issue(s)

    1. Whether Lynn G. presented sufficient evidence to raise a triable issue of fact that she lacked the capacity to consent to the cosmetic procedures due to Body Dysmorphic Disorder (BDD)?

    2. Whether Lynn G. presented sufficient evidence to raise a triable issue of fact that Dr. Hugo failed to adequately inform her of less invasive alternatives to the abdominoplasty?

    Holding

    1. No, because Lynn G. failed to provide sufficient evidence that she suffered from BDD at the time of the surgeries or that her mental state impaired her ability to consent.

    2. No, because Lynn G. failed to present sufficient evidence that Dr. Hugo did not inform her of less invasive alternatives; her expert’s assertions were conclusory, and her own testimony indicated that Dr. Hugo discussed those options.

    Court’s Reasoning

    The court emphasized that Dr. Hugo made a prima facie showing of informed consent by demonstrating he informed Lynn G. of the risks and she signed consent forms. To defeat summary judgment, Lynn G. needed to show a genuine issue of material fact. The court found her evidence lacking. Regarding BDD, the court noted Lynn G.’s experts only surmised she was “consistent with a form of” BDD, which was insufficient. The court highlighted the absence of proof that Lynn G. actually suffered from BDD at the time of the surgeries. The court pointed out, “Such unsubstantiated assertions or speculations are, of course, insufficient to create a triable issue of fact.” Regarding less invasive alternatives, the court dismissed Lynn G.’s expert’s affidavit as conclusory. Moreover, Lynn G.’s deposition revealed Dr. Hugo did discuss these options. The court also rejected Lynn G.’s argument that Dr. Hugo was negligent in combining liposuction and an abdominoplasty, since the procedures were spaced nine months apart.

  • Rosenberg v. Equitable Life Assurance Society, 79 N.Y.2d 666 (1992): Independent Contractor Liability and Inherently Dangerous Activities

    Rosenberg v. Equitable Life Assurance Society, 79 N.Y.2d 666 (1992)

    An employer is generally not liable for the negligence of an independent contractor unless the work involves a special danger that the employer knew or should have known was inherent in the work.

    Summary

    Sidney Rosenberg died after undergoing a stress electrocardiogram (EKG) required by Equitable Life as a condition of his life insurance application. His widow sued Equitable, alleging the insurer was vicariously liable for the doctor’s negligence, as the test was “inherently dangerous,” and for its own negligence in ordering the test without informed consent. The New York Court of Appeals held that Equitable was not liable. The court reasoned that performing an EKG is not inherently dangerous as a matter of law, especially when performed by a medical professional who has a duty to obtain informed consent. The Court emphasized that insurers need to be able to evaluate risk, relying on medical professionals to conduct tests responsibly.

    Facts

    Sidney Rosenberg, 51, with a history of diabetes and heart disease (including a prior heart attack at age 44), applied for life insurance with Equitable Life. Equitable required him to undergo a physical examination, including a stress EKG, due to his medical history. The examination was performed by Dr. Arora, an independent contractor paid by Equitable on a case-by-case basis. Mrs. Rosenberg testified that after the exam, her husband appeared pale and unwell. He died of a heart attack a month later.

    Procedural History

    Mrs. Rosenberg sued Equitable, alleging negligence and vicarious liability. The jury found Equitable liable on both grounds and awarded damages. The Appellate Division affirmed the jury’s determination. Equitable appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Equitable was vicariously liable for the alleged negligence of Dr. Arora under the “inherently dangerous activity” exception to the independent contractor rule?

    2. Whether Equitable had a direct duty to obtain Sidney Rosenberg’s informed consent before requiring him to undergo the stress EKG?

    Holding

    1. No, because performing a stress EKG is not an inherently dangerous activity as a matter of law when performed by a medical professional.

    2. No, because Sidney Rosenberg should have relied on the examining physician to explain any potential risks.

    Court’s Reasoning

    The Court of Appeals reversed the Appellate Division, dismissing the complaint. The Court acknowledged the general rule that an employer is not liable for the acts of an independent contractor, but recognized exceptions, including when the work is “inherently dangerous.” The court stated, “One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in of normal to the work… is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.” The Court distinguished between dangers inherent in the work itself and dangers arising from the contractor’s negligence. It reasoned that Equitable could reasonably expect Dr. Arora to fulfill his professional duty to inform Rosenberg of the risks and obtain his consent. Because Dr. Arora had a legal duty to disclose risks and obtain consent, Equitable could not be held liable for his potential negligence in failing to do so. The court emphasized the public policy considerations, stating, “Insurers must be free, before issuing a policy, to test them in a manner calculated to evaluate the risk presented. In the process, they necessarily rely on members of the medical profession… to perform their duty by refusing to conduct dangerous tests unless the patient is fully apprised of the risks and consents to their administration.” The court also rejected the claim that Equitable had a direct duty to obtain Rosenberg’s informed consent, stating he should have relied on Dr. Arora for that information.

  • Suria v. Shiffman, 67 N.Y.2d 91 (1986): Successive Tortfeasor Liability and Jury Verdict Ambiguity

    Suria v. Shiffman, 67 N.Y.2d 91 (1986)

    When multiple tortfeasors cause injury, a successive tortfeasor is liable only for the aggravation of injuries caused by their own conduct, not for the entire harm caused by the initial tortfeasor.

    Summary

    Luis Suria sued Dr. Shiffman for malpractice stemming from silicone injections and Dr. Dhaliwal for malpractice and lack of informed consent regarding a subsequent mastectomy. The jury found Shiffman liable for malpractice, Dhaliwal liable for lack of informed consent, and Suria contributorily negligent. The Court of Appeals addressed whether the finding of contributory negligence barred recovery against Shiffman, given that the cause of action accrued before the adoption of comparative negligence in New York. The court also clarified the liability of Dhaliwal as a successive tortfeasor, limiting his liability to the aggravation of Suria’s injuries caused by his own actions.

    Facts

    Suria, a transsexual, sought breast augmentation from Dr. Shiffman, who allegedly injected silicone into his breasts in 1974. Suria experienced complications, and Dr. Shiffman treated him unsuccessfully. Later, Suria sought treatment from Dr. Dhaliwal, who performed a bilateral subcutaneous mastectomy. Suria claimed he did not consent to the mastectomy. He left the hospital against medical advice and developed a wound infection requiring further surgery. Conflicting testimony existed regarding the substance injected, with Shiffman claiming Suria admitted to mineral oil injections from a friend.

    Procedural History

    Suria sued Shiffman for malpractice and Dhaliwal for malpractice and lack of informed consent. The trial court instructed the jury on comparative negligence. The jury found Shiffman liable for malpractice (60% at fault), Dhaliwal liable for lack of informed consent (15% at fault), and Suria contributorily negligent (25% at fault), awarding $2,000,000 in damages. The trial court dismissed the claim against Shiffman based on contributory negligence and reduced the award against Dhaliwal to $1,500,000. The Appellate Division reinstated the verdict against Shiffman and ordered a new trial on damages unless Suria stipulated to reduce the verdict to $800,000. Suria stipulated, and Shiffman appealed. Dhaliwal’s motion for leave to appeal was granted by the Court of Appeals.

    Issue(s)

    1. Whether the principles of contributory negligence applied to the claim against Shiffman, barring recovery if Suria was negligent before Shiffman’s malpractice.

    2. Whether Dhaliwal was a successive tortfeasor, liable only for the aggravation of injuries caused by his own conduct, or a joint tortfeasor, liable for the full amount of the judgment.

    3. Whether the jury verdict was ambiguous due to the general finding of the plaintiff’s negligence without specifying the negligent act.

    Holding

    1. Yes, because Suria’s cause of action against Shiffman accrued before the effective date of the comparative negligence statute; thus, contributory negligence principles applied.

    2. Yes, because Dhaliwal’s actions were independent and successive, not concurrent or in concert with Shiffman’s malpractice; therefore, Dhaliwal is liable only for the aggravation caused by his own conduct.

    Court’s Reasoning

    The Court reasoned that because Shiffman’s malpractice occurred before the implementation of comparative negligence, traditional contributory negligence principles applied. If Suria’s pre-operative conduct (allegedly receiving mineral oil injections) was negligent and contributed to his injuries, it would bar recovery against Shiffman. However, postsurgical negligence (leaving the hospital against medical advice) would only reduce, not bar, recovery under contributory negligence principles.

    The Court determined that Dhaliwal was a successive tortfeasor because his actions were independent of and occurred after Shiffman’s alleged malpractice. The court quoted Derby v. Prewitt, 12 NY2d 100, noting that "although the original wrongdoer is liable for all the proximate results of his own tortious act, including aggravation of injuries by a successive tort-feasor, the successive tort-feasor is liable only for the aggravation caused by his own conduct." Therefore, Dhaliwal’s liability was limited to damages caused by his failure to obtain informed consent for the mastectomy.

    Because the jury’s verdict was ambiguous, failing to specify whether Suria’s negligence stemmed from pre-operative injections or post-operative conduct, the Court looked to CPLR 4111(b), which states that if the court omits an issue of fact from the jury interrogatories, each party waives the right to a jury trial on that issue unless demanded before the jury retires. The Appellate Division’s conclusion that Suria’s culpable conduct consisted of his premature departure from the hospital was deemed a finding on that issue that comported with the weight of the evidence.

  • Davis v. Caldwell, 54 N.Y.2d 176 (1981): General Verdicts and Insufficient Evidence in Medical Malpractice

    54 N.Y.2d 176 (1981)

    When a jury returns a general verdict on multiple theories of liability, the verdict must be reversed if the evidence is insufficient to support one or more of those theories.

    Summary

    Joan Davis underwent a bilateral subcutaneous mastectomy performed by Dr. Elethea Caldwell at Strong Memorial Hospital. Subsequently, the Davises sued Dr. Caldwell and the hospital, alleging the surgery was unnecessary. The trial court presented five theories of liability to the jury: erroneous diagnosis, failure to perform a biopsy, unnecessary operation, failure to follow accepted medical standards, and failure to obtain informed consent. The jury returned a general verdict for the plaintiffs. The Court of Appeals reversed, holding that because the evidence was insufficient to support the erroneous diagnosis and unnecessary operation claims, and the general verdict made it impossible to determine if the jury relied on those unsupported claims, a new trial was required on the remaining theories.

    Facts

    Joan Davis underwent a bilateral subcutaneous mastectomy performed by Dr. Caldwell. Prior to the surgery, a mammogram suggested possible carcinoma, but pathological studies post-surgery revealed no malignancy. Two years prior, cancerous tissue had been removed from Mrs. Davis’ right breast via biopsy. Dr. Wende Logan diagnosed “Bilateral mastopathy with calcification suspicious of carcinoma” before the surgery. Mrs. Davis had previously refused a mastectomy when cancer was detected earlier.

    Procedural History

    The Davises sued Dr. Caldwell and Strong Memorial Hospital. The trial court submitted five theories of liability to the jury, which returned a general verdict for the plaintiffs. The Appellate Division affirmed. The Court of Appeals reversed the Appellate Division’s order due to insufficient evidence supporting some of the liability theories presented to the jury.

    Issue(s)

    1. Whether a general verdict in favor of the plaintiff can stand when the jury was instructed on multiple theories of liability, and the evidence was insufficient to support one or more of those theories.

    2. Whether there was sufficient evidence to support the theories of liability based on erroneous diagnosis and the performance of an unnecessary operation.

    3. Whether there was sufficient evidence to support the theories of liability based on failure to perform a biopsy and failure to obtain informed consent.

    Holding

    1. No, because it is impossible to determine whether the verdict was based on a theory lacking sufficient evidentiary support.

    2. No, because the evidence did not show that Dr. Caldwell made the erroneous diagnosis or that the surgery was unnecessary given the patient’s history and mammogram results.

    3. Yes, because the plaintiffs presented expert testimony indicating that performing the mastectomy without a prior biopsy deviated from accepted medical practice and that the patient was not adequately informed about the preventative nature of the surgery or the option of a biopsy.

    Court’s Reasoning

    The Court reasoned that when a jury is presented with multiple theories of liability and returns a general verdict, the verdict cannot stand if the evidence supporting one or more of those theories is insufficient. The Court found no evidence that Dr. Caldwell made an erroneous diagnosis; the diagnosis was made by Dr. Logan. Regarding the unnecessary operation claim, the Court noted the patient’s history of cancer and the suspicious mammogram results, stating that “Absent medical expert evidence offered by plaintiffs, of which there was none, that the surgery was unnecessary in the circumstances present, the claim predicated on such a contention should have been dismissed”. Regarding the failure to perform a biopsy, the Court noted expert testimony indicating it was a departure from accepted medical practice. The Court also found sufficient evidence of a lack of informed consent, as the plaintiffs testified they were not adequately informed about the preventative nature of the surgery or the alternative of a biopsy. The court referenced CPLR 4401-a regarding expert medical testimony supporting the qualitative insufficiency of consent. The Court emphasized that the jury could have based its verdict on the unsupported theories, necessitating a new trial. The court noted that the testimony presented a question of credibility regarding the conversations with the doctors, but that this did not change the fact that the plaintiffs presented a case for submission to the jury on the claim of lack of informed consent. The court quoted testimony from the defendant’s plastic surgeon that a consent to such an operation without disclosing the doubtfulness of its benefit could not be based on adequate information, thus, not an informed consent. The court also cited testimony that it would be improper medical practice to obtain a patient’s consent on the basis of advice that she had cancer when in fact she did not.