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Osorio v. Brauner

Appellate Division of the Supreme Court of New York, First Department
Sep 30, 1997
242 A.D.2d 511 (N.Y. App. Div. 1997)

Opinion

September 30, 1997

Appeal from Supreme Court, Bronx County (Anne Targum, J., and a jury).


Plaintiff's testimony that he would not have agreed to the tattoo removal operation if he had been fully informed of the possibility of hypertrophic scarring was sufficient to present a question of fact requiring the jury to assess the risks and benefits of the operation, and then to determine whether a reasonably prudent person would not have agreed to the operation ( see, Dooley v. Skodnek, 138 A.D.2d 102, 106; Lipsius v. White, 91 A.D.2d 271, 280). Plaintiff was not required to adduce expert medical testimony to the effect that a reasonably prudent person in plaintiff's position would not have undergone such an operation if he or she had been fully informed of such a risk. While Briggins v. Chynn ( 204 A.D.2d 158) may appear to indicate that the action therein was dismissed because the plaintiff failed to adduce expert testimony on the "reasonably prudent person" standard of Public Health Law § 2805-d (3), actually that case was dismissed because the plaintiff's expert testimony failed to raise a jury question as to whether the risk disclosure that had been given to plaintiff was insufficient, as required by Public Health Law § 2805-d (1) and CPLR 4401-a.

The award of $120,000, as reduced by the trial court, does not deviate materially from what is reasonable compensation for the four-inch raised scar on plaintiff's forearm, which changes color and becomes painful when exposed to the sun and has caused muscle weakness.

Concur — Milonas, J.P., Rubin, Mazzarelli and Andrias, JJ.


Summaries of

Osorio v. Brauner

Appellate Division of the Supreme Court of New York, First Department
Sep 30, 1997
242 A.D.2d 511 (N.Y. App. Div. 1997)
Case details for

Osorio v. Brauner

Case Details

Full title:CARLOS OSORIO et al., Respondents, v. GARY J. BRAUNER, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Sep 30, 1997

Citations

242 A.D.2d 511 (N.Y. App. Div. 1997)
662 N.Y.S.2d 488

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