Summary
permitting battery claim where patient refused consent to operation and distinguishing cases involving lack of informed consent
Summary of this case from Meyers v. EpsteinOpinion
June 25, 1987
Appeal from the Supreme Court, New York County (Louis Grossman, J.).
In the early morning of April 24, 1982, plaintiff, a 49-year-old white male, with alcohol on his breath (blood alcohol level was later tested to be .232; the legal level for intoxication according to the standards established by Vehicle and Traffic Law § 1195 is .100), was brought to the emergency room of the defendant hospital with multiple stab wounds. Upon his arrival, plaintiff requested treatment. However, after defendants informed plaintiff that they wished to perform a surgical procedure on him, plaintiff refused to consent. Believing that plaintiff was incompetent to consent and in a life-threatening situation, and since attempts to obtain consent from plaintiff's family members failed, "consent" was obtained by Dr. Glover from a hospital administrator. An exploratory laparotomy (a surgical cut through the abdomen) was performed. After it was determined that plaintiff had not suffered intraperitoneal injury, plaintiff was brought to the recovery room. Shortly thereafter, plaintiff was discharged from the hospital in a greatly improved condition.
As a result of the nonconsensual operation, plaintiff sued defendants for: (1) assault; (2) punitive damages; and (3) malpractice.
Defendants urge that the first cause of action for assault should be dismissed since the theory of "lack of informed consent", where a physician performs an operation on a patient without the patient's informed consent, is now generally considered a form of medical malpractice and not assault and battery. (See, Dries v Gregor, 72 A.D.2d 231 [4th Dept 1980]; Murriello v Crapotta, 51 A.D.2d 381 [2d Dept 1976].) While this is true, the doctrine of lack of informed consent is not applicable to the instant circumstances. In contrast to a situation where a patient consents to a medical procedure without being fully aware of the risks and consequences involved, the instant case concerns a physician who performed an operation on a patient although the patient emphatically refused to consent to such operation.
Though Schloendorff v Society of N.Y. Hosp. ( 211 N.Y. 125, 129-130) has been limited by New York courts with respect to allegations of lack of informed consent, Judge Cardozo's statement, that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages * * * except in cases of emergency" is accepted as fundamental law. (See, Dale v State of New York, 44 A.D.2d 384, 386 [3d Dept 1974], affd 36 N.Y.2d 833.) Certainly, assault is a viable theory of recovery in circumstances where a medical procedure is performed, against a competent patient's expressed wishes, in a nonexigent situation.
Accordingly, as unresolved factual questions exist with regard to the first cause of action (e.g., whether an emergency situation existed; was plaintiff sufficiently impaired by alcohol to render him incompetent), summary judgment was properly denied. (See, Rotuba Extruders v Ceppos, 46 N.Y.2d 223.)
Plaintiff's second cause of action, however, seeking punitive damages, should be dismissed. First, we note in passing that the cause of action is improperly pleaded as a separate cause of action. (See, Royal Globe Ins. Co. v Chock Full O'Nuts Corp., 86 A.D.2d 315, 321 [1st Dept 1982], lv dismissed 58 N.Y.2d 800.) Second, and more importantly, aside from the improper form of pleading, the record fails to support any basis for an award of punitive damages or to create a triable issue of fact with respect thereto. Consequently, defendants' motion for summary judgment seeking dismissal of the second cause of action is granted.
Defendants' motion for summary judgment seeking dismissal of plaintiff's third cause of action for medical malpractice is supported by an affidavit of Dr. Barker, a licensed New York State physician. Dr. Barker's opinion establishes that defendants did not deviate from good and accepted medical practice. Plaintiff has failed to rebut this evidence as he has only submitted affidavits of his son and himself, which are of no probative value in defeating this summary judgment motion. (See, Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324-325; and see, Pan v Coburn, 95 A.D.2d 670.) Accordingly, defendants' motion to dismiss plaintiff's third cause of action for medical malpractice is granted.
Concur — Murphy, P.J., Sandler, Carro, Asch and Wallach, JJ.