Opinion
October 11, 1994
Appeal from the Supreme Court, Dutchess County (Beisner, J.).
Ordered that the cross appeal from the order is dismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.
The cross appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in favor of Jack Goodman (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the cross appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The Supreme Court properly granted summary judgment to the defendant Vassar Hospital, since there was no evidence to support the imposition of vicarious liability upon it (see, Public Health Law § 2805-d; Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 546-547; Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79; Ruane v Niagara Falls Mem. Med. Ctr., 60 N.Y.2d 908; Fiorentino v Wenger, 19 N.Y.2d 407, 414; Culkin v. Nassau Hosp. Assn., 143 A.D.2d 973, 974; Brandon v. Karp, 112 A.D.2d 490; Mertsaris v. 73rd Corp., 105 A.D.2d 67, 79-81). The Supreme Court also properly granted summary judgment to the defendant James K. Keeley, the attending surgeon, as there was no evidence that Keeley departed from accepted medical practice and standards, and, as an attending surgeon, Keeley had no duty to obtain Mr. Tibodeau's informed consent (see, Spinosa v. Weinstein, 168 A.D.2d 32, 39-40).
The Supreme Court also properly granted the defendant Jack Goodman's motion to dismiss the complaint insofar as it is asserted against him at the close of the plaintiffs' case. During their case, the plaintiffs utilized Goodman as their expert, and he testified that while he informed Mr. Tibodeau that he required an operation to clamp an aneurysm, he only informed Rita Tibodeau of the risks and alternatives to surgery and obtained her consent because such a disclosure to Mr. Tibodeau would adversely and substantially affect his condition. This unrebutted testimony established a complete defense to the allegation of a lack of informed consent (see, Public Health Law § 2805-d [d]), and the plaintiffs failed to submit evidence in their direct case which demonstrated that Mr. Tibodeau's condition was not other than what Goodman testified to, or that some information about risks and alternatives could have been disclosed to him notwithstanding his condition (see, Gonzalez v. Moscarella, 142 A.D.2d 550; Hylick v. Halweil, 112 A.D.2d 400).
In addition, a trial order of dismissal was also properly granted because the plaintiffs failed to demonstrate that a reasonable person in Mr. Tibodeau's position would have opted against the surgery had he been fully informed of the risks and alternatives and that the surgical procedure was the proximate cause of his injuries (see, Public Health Law § 2805-d, [3]; CPLR 4401-a; Shinn v. St. James Mercy Hosp., 675 F. Supp. 94, 100, affd 847 F.2d 836; Davis v. Caldwell, 54 N.Y.2d 176, 182; Briggins v. Chynn, 204 A.D.2d 158; Eppel v. Fredericks, 203 A.D.2d 152; Evans v. Holleran, 198 A.D.2d 472; Bernard v. Block, 176 A.D.2d 843, 848; Dodes v. North Shore Univ. Hosp., 149 A.D.2d 455; Culkin v. Nassau Hosp. Assn., supra, at 973; Goodreau v. State of New York, 129 A.D.2d 978; Hylick v. Halweil, supra).
In view of this determination, the issues raised upon Goodman's cross appeal from the order denying his motion for summary judgment are academic. We have considered all of the plaintiffs' remaining contentions and find them to be without merit. Mangano, P.J., Thompson, O'Brien and Ritter, JJ., concur.