Opinion
570408/04, 04-340.
Decided November 21, 2005.
Plaintiff appeals from an order of Civil Court, New York County (Geoffrey D. Wright, J.), entered February 26, 2004, which granted defendant's motion for summary judgment dismissing the complaint.
Order (Geoffrey D. Wright, J.), entered February 26, 2004, affirmed, with $10 costs.
PRESENT: SUAREZ, P.J., DAVIS, GANGEL-JACOB, JJ.
This action for civil assault and battery, false imprisonment, and negligence stems from allegations that defendants administered general anesthesia instead of the local anesthesia agreed to by plaintiff, rendering him unconscious for approximately two hours while undergoing a hernia operation. More precisely, plaintiff claims that he remained unconscious for 23 minutes longer than the surgery took, and that this "prolongation of unconsciousness" resulted in "delay and sickness of recovery."
As to the battery claim, plaintiff was required to show that the intended contact was "'offensive', i.e., wrongful under all the circumstances" ( Messina v. Matarasso, 284 AD2d 32, 35, quoting Zgraggen v. Wilsey, 200 AD2d 818, 819; see PJ13d 3:3). Fatal to that claim was plaintiff's execution of various surgical consent forms, including a "Consent For Anesthesia" expressly authorizing defendant to administer such anesthetic agents as they "may consider necessary", and plaintiff's failure to adduce competent evidence that the type of anesthesia administered by defendants was not "necessary". Nor did plaintiff raise a triable issue with respect to his civil assault claim, which required proof that defendants placed plaintiff in imminent apprehension of harmful contact ( Cotter v. Summit Servs., 14 AD3d 475).
Plaintiff's cause of action for false imprisonment must also fail, since he failed to establish the essential elements that he was conscious of his "confinement" or that it was not consented to ( Broughton v. State of New York, 37 NY2d 451, 456, cert denied sub nom Schanbarger v. Kellogg, 423 US 929). Summary dismissal of the negligence claim was also warranted for lack of proof that defendants were negligent in administering general instead of local anaesthesia, resulting in physical or psychological injury.
Finally, a fair reading of the complaint as amplified by the bill of particulars, as well as counsel's affirmation, raises no triable issue of fact as to any claim of medical malpractice ( Alvarez v. Prospect Hosp., 68 NY2d 320). Indeed, plaintiff offered no medical evidence as to any injury from the ambulatory surgery itself or the type of anesthesia administered.
This constitutes the decision and order of the Court.