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Abram v. Children's Hospital of Buffalo

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 2, 1989
151 A.D.2d 972 (N.Y. App. Div. 1989)

Summary

holding that under the statute governing informed consent there was no breach of duty to disclose the experience of the personnel administering the medical care

Summary of this case from Goldberg v. Boone

Opinion

June 2, 1989

Appeal from the Supreme Court, Erie County, Gossel, J.

Present — Dillon, P.J., Doerr, Green, Pine and Davis, JJ.


Order insofar as appealed from unanimously reversed on the law without costs, in accordance with the following memorandum: Plaintiffs moved to amend a medical malpractice complaint against the surgeon, the hospital and certain employees, and the anesthesiology professional corporation and certain employees, to add a cause of action against all defendants for lack of informed consent on the ground that the patient had never been fully or properly informed that a nurse anesthetist and/or a student physician and/or a resident in obstetrics and gynecology were to participate vitally in the administration of anesthetic during her surgery. During a laparoscopy, plaintiff wife suffered cardiac arrest and remains comatose.

The cause of action for lack of informed consent has since 1975 been defined by Public Health Law § 2805-d and is limited to the failure of the person providing professional treatment or diagnosis to disclose to the patient alternatives thereto and the reasonably foreseeable risks and benefits involved. This statute was enacted to limit the doctrine of informed consent as it had developed in case law (see, legislative mem, 1975 McKinney's Session Laws of NY, at 1599 [ch 109]). The above definition covers disclosure of alternatives to treatment, and risks and benefits involved in treatment; it cannot reasonably be read to require disclosure of qualifications of personnel providing that treatment. Even before the enactment of Public Health Law § 2805-d such a claim had been rejected (see, Zimmerman v. New York City Health Hosps. Corp., 91 A.D.2d 290; Henry v. Bronx Lebanon Med. Center, 53 A.D.2d 476). Special Term struck certain allegations of the proposed second cause of action. Only the hospital defendants and the anesthesiology defendants have appealed, contending that the proposed cause of action, even as redacted, has no merit and that leave to amend should not have been granted at all. We agree with appellants. The order insofar as it granted leave to serve an amended complaint against appellants is reversed, and the plaintiffs' motion is denied with respect to defendants-appellants.


Summaries of

Abram v. Children's Hospital of Buffalo

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 2, 1989
151 A.D.2d 972 (N.Y. App. Div. 1989)

holding that under the statute governing informed consent there was no breach of duty to disclose the experience of the personnel administering the medical care

Summary of this case from Goldberg v. Boone

noting that the cause of action for lack of informed consent has been statutorily defined and concluding it does not "require disclosure of qualifications of personnel providing ... treatment"

Summary of this case from Andersen v. Khanna

explaining that the statutory definition of informed consent "covers disclosure of alternatives to treatment, and risks and benefits involved in treatment" but that "it cannot reasonably be read to require disclosure of qualifications of personnel providing that treatment"

Summary of this case from Yentes v. Papadopoulos

In Abram, the court held that the "above definition [Public Health Law § 2805-d] covers disclosure of alternatives to treatment, and risks and benefits involved in the treatment; it cannot reasonably be read to require disclosure of qualifications of personnel providing that treatment" (id. at 972).

Summary of this case from Murphy v. Drosinos
Case details for

Abram v. Children's Hospital of Buffalo

Case Details

Full title:DEBORAH ABRAM, by TERRY L. ABRAM, Her Guardian ad Litem and Conservator…

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

Date published: Jun 2, 1989

Citations

151 A.D.2d 972 (N.Y. App. Div. 1989)
542 N.Y.S.2d 418

Citing Cases

Andersen v. Khanna

See Ditto v. McCurdy , 947 P.2d 952, 958–59 (Haw. 1997) ("Hawaii’s statute on informed consent expressly…

Yentes v. Papadopoulos

; cf. Abram by Abram v. Children's Hosp. of Buffalo, 151 A.D.2d 972, 542 N.Y.S.2d 418, 419 (1989) (explaining…