Opinion
434 CA 19-01505
08-20-2020
Brian MITCHELL, Plaintiff-Respondent, v. Po N. LAM, M.D., and Associated Medical Professionals of NY, PLLC, Also Known as A.M.P., Defendants-Appellants.
GALE GALE & HUNT, LLC, SYRACUSE (MATTHEW J. VANBEVEREN OF COUNSEL), FOR DEFENDANTS-APPELLANTS. COTE & VANDYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
GALE GALE & HUNT, LLC, SYRACUSE (MATTHEW J. VANBEVEREN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
COTE & VANDYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this medical malpractice action in which plaintiff seeks damages arising from a surgical procedure, defendants appeal from an order that, inter alia, denied that part of their motion seeking dismissal of plaintiff's claim of lack of informed consent. We reject defendants' contention that Supreme Court erred in denying that part of their motion, and therefore we affirm. A medical professional may be deemed to have committed the intentional tort of battery, rather than medical malpractice, "if he or she carries out a procedure or treatment to which the patient has provided ‘no consent at all’ " ( VanBrocklen v. Erie County Med. Ctr. , 96 A.D.3d 1394, 1394, 949 N.Y.S.2d 300 [4th Dept. 2012] ; see McCarthy v. Shah , 162 A.D.3d 1727, 1728, 80 N.Y.S.3d 778 [4th Dept. 2018] ). Nevertheless, the lack of informed consent may be a proper element of a medical malpractice claim against a medical professional who is alleged to have negligently exceeded the scope of the patient's consent (see Ponholzer v. Simmons , 78 A.D.3d 1495, 1496, 910 N.Y.S.2d 609 [4th Dept. 2010], lv dismissed 16 N.Y.3d 886, 923 N.Y.S.2d 413, 947 N.E.2d 1193 [2011] ; cf. Tirado v. Koritz , 156 A.D.3d 1342, 1343, 68 N.Y.S.3d 295 [4th Dept. 2017] ). Here, plaintiff pleaded in the alternative that defendant Po N. Lam, M.D. failed to recall the scope of the consent while performing the hernia-related procedure and thereby "negligently exceeded the scope of plaintiff's consent" ( Ponholzer , 78 A.D.3d at 1496, 910 N.Y.S.2d 609 ).