Tsimbler v. Fell

43 Citing cases

  1. Dyckes v. Stabile

    153 A.D.3d 783 (N.Y. App. Div. 2017)   Cited 23 times
    In Dyckes v. Stabile. 153 A.D.3d 783 (2d Dep't 2017), the court held that defendant did not met his burden because he failed to establish whether plaintiff was informed about the procedures, the alternatives thereto, and the reasonably foreseeable risks and benefits of the proposed treatment and alternatives.

    for summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against him. "Lack of informed consent is a distinct cause of action which requires proof of facts not contemplated by an action based merely on allegations of negligence" ( Kleinman v. North Shore Univ. Hosp., 148 A.D.3d 693, 694, 48 N.Y.S.3d 455 [internal quotation marks and brackets omitted] ). "A cause of action predicated on a lack of informed consent is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical ... practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation" ( id. at 694, 48 N.Y.S.3d 455 [internal quotation marks omitted]; see Public Health Law § 2805–d[1] ; Figueroa–Burgos v. Bieniewicz, 135 A.D.3d 810, 23 N.Y.S.3d 369 ; Tsimbler v. Fell, 123 A.D.3d 1009, 1010, 999 N.Y.S.2d 863 ; Walker v. Saint Vincent Catholic Med. Ctrs., 114 A.D.3d 669, 670, 979 N.Y.S.2d 697 ). To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury (see Figueroa–Burgos v. Bieniewicz, 135 A.D.3d at 811, 23 N.Y.S.3d 369; Tsimbler v. Fell, 123 A.D.3d at 1010, 999 N.Y.S.2d 863 ; Walker v. Saint Vincent Catholic Med. Ctrs., 114 A.D.3d at 670, 979 N.Y.S.2d 697 ).

  2. Keller v. Carla Liberatore, M.D., Cny Obstetrics & Gynecology, P.C.

    134 A.D.3d 1495 (N.Y. App. Div. 2015)   Cited 8 times

    v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68). Inasmuch as plaintiff has failed to raise an issue of fact whether the repair was improperly performed, we see no need to address plaintiff's further contention that the court erroneously resolved a factual dispute with respect to her claim that Liberatore committed malpractice by allegedly allowing a resident to perform the repair. We reject plaintiff's contention that the court erred in dismissing those parts of the complaint premised on defendants' alleged failure to obtain her informed consent before administering the medication Pitocin to her. Contrary to plaintiff's contention, even in cases where the defendant fails to submit sufficient proof with respect to the other elements of an informed consent cause of action, the defendant may nevertheless establish entitlement to summary judgment by demonstrating that any lack of informed consent was not the proximate cause of the plaintiff's injury (see Tsimbler v. Fell, 123 A.D.3d 1009, 1010–1011, 999 N.Y.S.2d 863; Amodio v. Wolpert, 52 A.D.3d 1078, 1080, 861 N.Y.S.2d 799; Mondo v. Ellstein, 302 A.D.2d 437, 438, 754 N.Y.S.2d 579). Here, defendants met their initial burden inasmuch as the submission of their expert's affidavit and plaintiff's hospital records established that plaintiff was administered a conservative dosage of Pitocin that was well within standard levels and did not cause her injury (see Gage v. Dutkewych, 3 A.D.3d 629, 630–631, 771 N.Y.S.2d 202; see also Tsimbler, 123 A.D.3d at 1010–1011, 999 N.Y.S.2d 863).

  3. Abruzzi v. Maller

    221 A.D.3d 753 (N.Y. App. Div. 2023)   Cited 12 times

    Petillo submitted, inter alia, an affirmation from a physician who was board certified in internal medicine and infectious disease, and an affirmation from a surgical oncologist. " ‘While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field ... the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable’ " ( Behar v. Coren, 21 A.D.3d 1045, 1046–1047, 803 N.Y.S.2d 629, quoting Postlethwaite v. United Health Servs. Hosps., 5 A.D.3d 892, 895, 773 N.Y.S.2d 480 ; seeTsimbler v. Fell, 123 A.D.3d 1009, 1009–1010, 999 N.Y.S.2d 863 ; Shectman v. Wilson, 68 A.D.3d 848, 849, 890 N.Y.S.2d 117 ). Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered (seeTsimbler v. Fell, 123 A.D.3d at 1009, 999 N.Y.S.2d 863 ; Shectman v. Wilson, 68 A.D.3d at 850, 890 N.Y.S.2d 117 ; Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 871 N.Y.S.2d 617 ; Bjorke v. Rubenstein, 53 A.D.3d 519, 520, 861 N.Y.S.2d 757 ; Glazer v. Choong–Hee Lee, 51 A.D.3d 970, 971, 859 N.Y.S.2d 250 ; Mustello v. Berg, 44 A.D.3d 1018, 1019, 845 N.Y.S.2d 86 ; Behar v. Coren, 21 A.D.3d at 1046–1047, 803 N.Y.S.2d 629 ). Moreover, "[i]n order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record" ( Tsitrin v. New York Community Hosp., 154 A.D.3d 994, 996, 62 N.Y.S.3d 506 [

  4. Arra v. Kumar

    200 A.D.3d 949 (N.Y. App. Div. 2021)   Cited 3 times

    Through their submissions, as the plaintiff acknowledges, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the medical malpractice cause of action insofar as asserted against them (seeBenedetto v. Tannenbaum, 186 A.D.3d at 1598, 131 N.Y.S.3d 673 ). Further, the defendants demonstrated, prima facie, that the alleged lack of informed consent to the removal of the decedent's gallbladder did not proximately cause the decedent's injuries (seeGilmore v. Mihail, 174 A.D.3d 686, 688–689, 105 N.Y.S.3d 504 ; Tsimbler v. Fell, 123 A.D.3d 1009, 1010–1011, 999 N.Y.S.2d 863 ). "Although conflicting expert opinions may raise credibility issues which can only be resolved by a jury (seeFeinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661 ), expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" ( Wagner v. Parker, 172 A.D.3d 954, 955, 100 N.Y.S.3d 280 ).

  5. Arra v. Kumar

    No. 2018-00192 (N.Y. App. Div. Dec. 22, 2021)

    Through their submissions, as the plaintiff acknowledges, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the medical malpractice cause of action insofar as asserted against them (see Benedetto v Tannenbaum, 186 A.D.3d at 1598). Further, the defendants demonstrated, prima facie, that the alleged lack of informed consent to the removal of the decedent's gallbladder did not proximately cause the decedent's injuries (see Gilmore v Mihail, 174 A.D.3d 686, 688-689; Tsimbler v Fell, 123 A.D.3d 1009, 1010-1011).

  6. Bongiovanni v. Cavagnuolo

    138 A.D.3d 12 (N.Y. App. Div. 2016)   Cited 69 times

    Physicians offering opinions in medical, dental, podiatric, chiropractic, or other specialty malpractice actions must establish their credentials in order for their expert opinions to be considered by courts. They do so by being specialists in the field that is the subject of the action, or if not specialists in the same field, then by possessing the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable (see Tsimbler v. Fell, 123 A.D.3d 1009, 999 N.Y.S.2d 863; Mustello v. Berg, 44 A.D.3d 1018, 1019, 845 N.Y.S.2d 86; Behar v. Coren, 21 A.D.3d 1045, 1046–1047, 803 N.Y.S.2d 629; Postlethwaite v. United Health Servs. Hosps., 5 A.D.3d 892, 895, 773 N.Y.S.2d 480). Thus, when a physician offers an expert opinion outside of his or her specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see Tsimbler v. Fell, 123 A.D.3d at 1009, 999 N.Y.S.2d 863; Bey v. Neuman, 100 A.D.3d 581, 582, 953 N.Y.S.2d 266; Shectman v. Wilson, 68 A.D.3d 848, 850, 890 N.Y.S.2d 117; Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 842, 871 N.Y.S.2d 617; Bjorke v. Rubenstein, 53 A.D.3d 519, 520, 861 N.Y.S.2d 757; Glazer v. Lee, 51 A.D.3d 970, 971, 859 N.Y.S.2d 250; Mustello v. Berg, 44 A.D.3d at 1019, 845 N.Y.S.2d 86).

  7. Lavi v. Nyu Hosps. Ctr.

    133 A.D.3d 830 (N.Y. App. Div. 2015)   Cited 68 times

    The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint, and the plaintiffs appeal from so much of the order as dismissed the causes of action alleging medical malpractice and lack of informed consent. The defendants met their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice by submitting the affidavit of their expert, an endocrinologist, which demonstrated that Schuval's treatment of the injured plaintiff's low testosterone condition through testosterone replacement therapy was performed in accordance with good and accepted standards of medical practice (see Tsimbler v. Fell, 123 A.D.3d 1009, 1009–1010, 999 N.Y.S.2d 863; Poter v. Adams, 104 A.D.3d 925, 926, 961 N.Y.S.2d 556). In opposition, the plaintiffs failed to raise a triable issue of fact.

  8. Leavy v. Merriam

    133 A.D.3d 636 (N.Y. App. Div. 2015)   Cited 62 times

    However, in opposition, the plaintiff raised a triable issue of fact, through the affirmation of her expert, as to whether these defendants departed from good and accepted medical practice and, if so, whether such a departure was a proximate cause of the decedent's injuries (see Schmitt v. Medford Kidney Ctr., 121 A.D.3d 1088, 996 N.Y.S.2d 75). The contention of Merriam, Stony Brook, Greene, and Rampil that the plaintiff's expert was unqualified to give an expert opinion on the standard of care of a general surgeon and an anesthesiologist merely because the expert was a cardiologist is without merit. An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable (see Tsimbler v. Fell, 123 A.D.3d 1009, 1009–1010, 999 N.Y.S.2d 863; Behar v. Coren, 21 A.D.3d 1045, 803 N.Y.S.2d 629; Postlethwaite v. United Health Servs. Hosps., 5 A.D.3d 892, 895, 773 N.Y.S.2d 480; LaMarque v. North Shore Univ. Hosp., 227 A.D.2d 594, 643 N.Y.S.2d 221). Once a medical expert establishes, as was done here, his or her knowledge of the relevant standards of care, he or she need not be a specialist in the particular area at issue to offer an opinion (see Tsimbler v. Fell, 123 A.D.3d at 1009, 999 N.Y.S.2d 863; Bodensiek v. Schwartz, 292 A.D.2d 411, 739 N.Y.S.2d 405; Erbstein v. Savasatit, 274 A.D.2d 445, 711 N.Y.S.2d 458; Allone v. University Hosp. of N.Y. Univ. Med. Ctr., 235 A.D.2d 447, 448, 652 N.Y.S.2d 1011; Julien v. Physician's Hosp., 231 A.D.2d 678, 680, 647 N.Y.S.2d 831). Any lack of skill or expertise goes to the weight of his or her opinion as evidence, not its admissibility (see Adamy v. Ziriakus, 92 N.Y.2d 396, 681 N.Y.S.2d 463, 704 N.E.2d 216; Erbstein v. Savasatit, 274 A.D.2d 445, 445, 711 N.Y.S.2d 458; Julien v. Physicia

  9. Arra v. Kumar

    2021 N.Y. Slip Op. 7270 (N.Y. Sup. Ct. 2021)

    Through their submissions, as the plaintiff acknowledges, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the medical malpractice cause of action insofar as asserted against them (see Benedetto v Tannenbaum, 186 A.D.3d at 1598). Further, the defendants demonstrated, prima facie, that the alleged lack of informed consent to the removal of the decedent's gallbladder did not proximately cause the decedent's injuries (see Gilmore v Mihail, 174 A.D.3d 686, 688-689; Tsimbler v Fell, 123 A.D.3d 1009, 1010-1011). "Although conflicting expert opinions may raise credibility issues which can only be resolved by a jury (see Feinberg v Feit, 23 A.D.3d 517, 519), expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (Wagner v Parker, 172 A.D.3d 954, 955).

  10. Arra v. Kumar

    2021 N.Y. Slip Op. 7270 (N.Y. Sup. Ct. 2021)

    Through their submissions, as the plaintiff acknowledges, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the medical malpractice cause of action insofar as asserted against them (see Benedetto v Tannenbaum, 186 A.D.3d at 1598). Further, the defendants demonstrated, prima facie, that the alleged lack of informed consent to the removal of the decedent's gallbladder did not proximately cause the decedent's injuries (see Gilmore v Mihail, 174 A.D.3d 686, 688-689; Tsimbler v Fell, 123 A.D.3d 1009, 1010-1011). "Although conflicting expert opinions may raise credibility issues which can only be resolved by a jury (see Feinberg v Feit, 23 A.D.3d 517, 519), expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (Wagner v Parker, 172 A.D.3d 954, 955).