        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

653
CA 12-02356
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.


EVELYN M. GRAY, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ASTON B. WILLIAMS, M.D., DEFENDANT-RESPONDENT.


HAGELIN KENT LLC, BUFFALO (MICHAEL T. HAGELIN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

CONNORS & VILARDO, LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John M.
Curran, J.), entered July 30, 2012. The judgment, insofar as appealed
from, granted that part of the motion of defendant for summary
judgment dismissing plaintiff’s third cause of action.

     It is hereby ORDERED that the judgment insofar as appealed from
is unanimously reversed on the law without costs, that part of
defendant’s motion for summary judgment seeking dismissal of the third
cause of action is denied and that cause of action is reinstated.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained as a result of a colonoscopy
performed by defendant, during which the rectosigmoid junction of
plaintiff’s colon was perforated. The perforation was not immediately
noticed, and plaintiff underwent emergency surgery the next day to
rectify the resulting medical problems. Plaintiff subsequently
asserted three causes of action, for negligent performance of the
colonoscopy, negligent post-procedure care, and lack of informed
consent. Defendant moved for summary judgment dismissing the
complaint, and Supreme Court granted that part of the motion with
respect to the cause of action for lack of informed consent.
Following a trial on the remaining causes of action, a jury found no
negligence on the part of defendant.

     As a preliminary matter, we note that the order from which
plaintiff appeals was subsumed in the final judgment, from which no
appeal was taken. In the exercise of our discretion we treat the
notice of appeal as valid and deem the appeal as taken from the
judgment (see Cowley v Kahn, 298 AD2d 917, 918; Hughes v Nussbaumer,
Clarke & Velzy, 140 AD2d 988, 988; see also CPLR 5520 [c]).

     We agree with plaintiff that the court erred in granting that
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                                                         CA 12-02356

part of defendant’s motion for summary judgment dismissing the cause
of action for lack of informed consent. “To succeed in a medical
malpractice cause of action premised on lack of informed consent, a
plaintiff must demonstrate that (1) the practitioner failed to
disclose the risks, benefits and alternatives to the procedure or
treatment that a reasonable practitioner would have disclosed and (2)
a reasonable person in the plaintiff’s position, fully informed, would
have elected not to undergo the procedure or treatment” (Orphan v
Pilnik, 15 NY3d 907, 908; see Public Health Law § 2805-d [1], [3]).
We conclude that defendant met his initial burden of establishing his
entitlement to judgment as a matter of law by submitting deposition
testimony, medical records, and an expert report, which demonstrated
that he informed plaintiff of the risks associated with the procedure,
as well as plaintiff’s signed written consent form, which confirmed
her understanding of those risks (see Public Health Law § 2805-d [1];
Lynn G. v Hugo, 96 NY2d 306, 309). We reject plaintiff’s contention
that defendant’s submissions in support of his motion were based
solely upon habit evidence (see generally Rivera v Anilesh, 8 NY3d
627, 633-635). Contrary to plaintiff’s further contention, we
conclude that defendant’s submissions were sufficient to establish his
entitlement to summary judgment inasmuch as they address each factual
allegation contained in plaintiff’s bill of particulars (cf. Payne v
Buffalo Gen. Hosp. [appeal No. 1], 96 AD3d 1628, 1630).

     We agree with plaintiff, however, that the court erred in
concluding that she failed to raise a triable issue of fact on the
ground that she did not submit an expert’s affidavit establishing that
a reasonably prudent person in her position would have declined the
procedure planned and performed by defendant had she received a
qualitatively sufficient explanation of its risks. Contrary to the
court’s conclusion, expert testimony concerning what a reasonable
person would have done in plaintiff’s position is not necessary to
maintain a cause of action premised upon lack of informed consent (see
Hugh v Ofodile, 87 AD3d 508, 509; Andersen v Delaney, 269 AD2d 193,
193; see generally Public Health Law § 2805-d [3]). Here, we conclude
that plaintiff’s affidavit addressing that element was sufficient to
raise a triable issue of fact (see James v Greenberg, 57 AD3d 849,
850). We further conclude that the affidavit of plaintiff’s expert
was sufficient to raise a triable issue of fact with respect to the
qualitative insufficiency of the consent (see Johnson v Jacobowitz, 65
AD3d 610, 613-614, lv denied 14 NY3d 710; cf. Evans v Holleran, 198
AD2d 472, 474). We therefore reverse the judgment insofar as appealed
from and deny defendant’s motion to the extent it seeks summary
judgment dismissing the cause of action for lack of informed consent.

     Finally, plaintiff’s contention that the dismissal of the cause
of action for lack of informed consent materially prejudiced her
ability to try the remaining causes of action is not properly before
this Court inasmuch as she limited her notice of appeal to issues
related to the cause of action for lack of informed consent (see State
Farm Mut. Auto. Ins. Cos. v Jaenecke, 81 AD3d 1474, 1474-1475, lv
denied 17 NY3d 701). In any event, plaintiff failed to provide a
transcript of the trial, thus rendering the record insufficient for
this Court to determine that issue on the merits (see generally Mergl
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                                               CA 12-02356

v Mergl, 19 AD3d 1146, 1147).




Entered:   July 5, 2013               Frances E. Cafarell
                                      Clerk of the Court
