Although the claim for lack of informed consent is usually seen in the context of a medical malpractice action, their origins are not the same. Informed consent claims in New York derive from Public Health Law §2805-d, whereas the medical malpractice claim evolved from the common law.

The law of informed consent is further qualified by Civil Practice Law and Rules §4401-a, which requires the trial court to dismiss the cause of action for lack of informed consent where there is inadequate expert testimony to support the alleged qualitative insufficiency of the consent. In order to survive dismissal, there must be expert testimony supporting the three separate elements of the cause of action, those being the failure to disclose, the refusal by the reasonably prudent patient, and proximate cause. Balzola v. Giese, 107 A.D.3d 587 (1st Dept. 2013). The purpose of this column is to discuss the approach to the defense of the informed consent claim at trial.

Pleadings

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