Opinion
CA 03-01247.
Decided March 19, 2004.
Appeal and cross appeals from an order of the Supreme Court, Erie County (David J. Mahoney, J.), entered September 12, 2002. The order granted defendants' motions for summary judgment in part and dismissed the medical malpractice cause of action.
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT.
GIBSON, MC ASKILL CROSBY, LLP, BUFFALO (KATHLEEN MARIE SWEET OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT EMERSON C. REID, M.D.
O'SHEA, REYNOLDS CUMMINGS, BUFFALO (DAVID M. STILLWELL OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT SISTERS OF CHARITY HOSPITAL.
PRESENT: PINE, J.P., WISNER, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of defendant Emerson C. Reid, M.D. in its entirety and dismissing the complaint against him and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action asserting causes of action for medical malpractice and lack of informed consent. She alleges injuries resulting from defendants' insistence that she proceed with a vaginal delivery of her child despite her repeated requests to undergo a Caesarean section delivery. She further alleges that defendants failed to advise her of the foreseeable risks of the vaginal birth and of alternative modes of treatment, thus allegedly prompting her consent to a vaginal delivery when a reasonably prudent person would not have consented. Supreme Court properly granted those parts of defendants' motions for summary judgment dismissing the medical malpractice cause of action. Defendants sustained their initial burden on the motions by submitting evidence establishing that a vaginal delivery was not contraindicated medically ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325; Kopra v. Aquino, 298 A.D.2d 880, lv dismissed in part and denied in part 99 N.Y.2d 573; Gennaro v. Dziuban [appeal No. 2], 277 A.D.2d 939; Kremer v. Buffalo Gen. Hosp., 269 A.D.2d 744, 745). Plaintiff failed to raise a triable issue of fact with regard to defendants' alleged malpractice ( see Alvarez, 68 N.Y.2d at 327; Gonzalez v. Sisters Hosp., 309 A.D.2d 1277; Gennaro, 277 A.D.2d at 939; Laribee v. City of Rome [appeal No. 1], 254 A.D.2d 805).
The court also properly granted that part of the motion of defendant Sisters of Charity Hospital for summary judgment dismissing the cause of action for lack of informed consent against it, but erred in denying that part of the parallel motion of defendant Emerson C. Reid, M.D. ( see Lynn G. v. Hugo, 96 N.Y.2d 306, 309-310; Lucenti v. St. Elizabeth Hosp., 289 A.D.2d 983; Gennaro, 277 A.D.2d at 939-940). Both defendants established their entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact ( see Lucenti, 289 A.D.2d at 983; Gennaro, 277 A.D.2d at 940). In order to make out a valid cause of action for lack of informed consent, plaintiff was required to allege an injury or death resulting from "`some affirmative violation of [her] physical integrity'" ( Pedone v. Thippeswamy, 309 A.D.2d 792, 793; see Smith v. Fields, 268 A.D.2d 579, 580; Campea v. Mitra, 267 A.D.2d 190, 191; Schel v. Roth, 242 A.D.2d 697, 698; Hecht v. Kaplan, 221 A.D.2d 100, 103), "such as surgical procedures, injections or invasive diagnostic tests" ( Karlsons v. Guerinot, 57 A.D.2d 73, 82). Here, plaintiff's cause of action for lack of informed consent is not predicated on an affirmative violation of the patient's physical integrity ( see Saguid v. Kingston Hosp., 213 A.D.2d 770, appeal dismissed 87 N.Y.2d 861, lv dismissed 88 N.Y.2d 868; Karlsons, 57 A.D.2d at 81-82). The injuries allegedly sustained by plaintiff were not the result of an invasive procedure, but instead were alleged to have been the result of a negligent failure to undertake or negligent postponing of such procedure ( see Saguid, 213 A.D.2d at 770; Karlsons, 57 A.D.2d at 81-82). Thus, we modify the order in appeal No. 1 by granting the motion of Reid in its entirety and dismissing the complaint against him.