Opinion
14108 Index No. 156102/17 Case No. 2020-03904
06-22-2021
Anthony ZEOLI, et al., Plaintiffs–Appellants, v. Ofer JACOBOWITZ, M.D., et al., Defendants–Respondents.
Shearer PC, Locust Valley ( Douglas Shearer of counsel), for appellants. Martin Clearwater & Bell LLP, New York ( Barbara D. Goldberg of counsel), for respondents.
Shearer PC, Locust Valley ( Douglas Shearer of counsel), for appellants.
Martin Clearwater & Bell LLP, New York ( Barbara D. Goldberg of counsel), for respondents.
Renwick, J.P., Kennedy, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York (Eileen A. Rakower, J.), entered on or about September 10, 2020, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiffs' claim for lack of informed consent, unanimously affirmed, without costs.
Defendants made a prima facie showing of informed consent by submitting deposition testimony and medical records establishing that they informed plaintiff Anthony Zeoli of the reasonably foreseeable risks associated with the procedures, and that plaintiff signed a written consent form indicating his understanding of those risks ( see Public Health Law § 2805–d[1] ; Lynn G. v. Hugo, 96 N.Y.2d 306, 728 N.Y.S.2d 121, 752 N.E.2d 250 [2001] ; Matter of Colletti v. Schiff, 98 A.D.3d 887, 951 N.Y.S.2d 139 [1st Dept. 2012] ; Smith v. Cattani, 2 A.D.3d 259, 769 N.Y.S.2d 32 [1st Dept. 2003] ). The written consent explicitly stated, "Your throat will have been re-fashioned and swallowing may feel differently than before. It will take time to readjust to swallowing with a newly configured throat. Rarely some patients will report some difficulty swallowing permanently," sufficiently alerting Zeoli to the exact complication alleged to have occurred here. Plaintiffs' claim that the doctor minimized the risk and failed to advise that CPAP was a no risk alternative, is a feigned issue of fact, contradicted by the medical records, which list multiple conversations concerning plaintiff's prior attempts to use a CPAP machine, attempts that failed due to plaintiff's reported claustrophobia and discomfort ( see Bamberg–Taylor v. Strauch, 192 A.D.3d 401, 142 N.Y.S.3d 537 [1st Dept. 2021] ).