A claim for lack of informed consent has three elements: (1) that the defendant failed to disclose the alternatives to the procedure and the reasonably foreseeable risks and benefits involved as a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation; (2) that a reasonably prudent person in the patient’s position would not have undergone the procedure if he or she had been fully informed; and, (3) that the lack of informed consent was a proximate cause of the injury. Public Health Law §2805-d. Pursuant to CPLR 4401-a, in order to establish a prima facie case for a cause of action for lack of informed consent, the plaintiff must submit “expert medical testimony in support of the alleged qualitative insufficiency of the consent.”
Over the years, some confusion has arisen with regard to the interplay between the requirements of these two statutes. Specifically, we have heard attorneys and judges express an understanding that plaintiffs asserting informed consent causes of action are required to adduce expert testimony to the effect that a reasonably prudent person would not have undergone the procedure if fully informed of the risks and alternatives. This stems from some Appellate Division decisions that have used language to that effect. However, more recent decisions demonstrate that this is not the case. In this column, we will endeavor to clarify this issue, and dispel any confusion that has developed.
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