Opinion
748 CA 17–01191
06-29-2018
Jean MCCARTHY, Plaintiff–appellant, v. Siddhartha S. SHAH, M.D., and Gastroenterology Associates, LLP, Defendants–Respondents. (Appeal No. 1.)
CAMPBELL & ASSOCIATES, EDEN (R. COLIN CAMPBELL OF COUNSEL), FOR PLAINTIFF–APPELLANT. GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (KARA M. EYRE OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
CAMPBELL & ASSOCIATES, EDEN (R. COLIN CAMPBELL OF COUNSEL), FOR PLAINTIFF–APPELLANT.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (KARA M. EYRE OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the cause of action for battery is reinstated.
Memorandum: These consolidated appeals arise from a medical malpractice action in which plaintiff seeks damages for, inter alia, rectal bleeding allegedly arising from a colonoscopy performed upon plaintiff by Siddhartha S. Shah, M.D. (defendant). In appeal No. 1, plaintiff appeals from an order that granted defendants' CPLR 3211 motion to dismiss her battery cause of action. In appeal No. 2, plaintiff appeals from an order that granted defendants' CPLR 3211 motion to dismiss her claim for punitive damages.
In appeal No. 1, we agree with plaintiff that Supreme Court erred in granting defendants' motion to dismiss her battery cause of action. On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law[,] a motion for dismissal will fail" ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977] ; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). "[W]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 683, 48 N.Y.S.3d 450 [2d Dept. 2017] ). Above all, the issue "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ).
"It is well settled that a medical professional may be deemed to have committed battery, rather than 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 Tirado v. Koritz, 156 A.D.3d 1342, 1343, 68 N.Y.S.3d 295 [4th Dept. 2017] ). Here, in moving under CPLR 3211(a)(7), defendants attached all of the pleadings, which alleged, inter alia, that defendants "performed a procedure upon the Plaintiff while she was under general anesthesia without informing her or obtaining any consent, which conduct constituted a battery upon her." Defendants also referenced and provided to the court the informed consent form executed by plaintiff that explicitly authorized the performance of a flexible sigmoidoscopy, but not a colonoscopy. The form further noted in relevant part that, "[i]f any unforeseen condition arises during the procedure calling for, in the physician's judgment, additional procedures, treatments, or operations, [defendant is] authorize[d] ... to do whatever he ... deems advisable." We conclude that plaintiff has sufficiently asserted a cause of action sounding in battery by alleging that she provided no consent to the performance of a colonoscopy (see Tirado, 156 A.D.3d at 1343, 68 N.Y.S.3d 295 ; Matter of Small Smiles Litig., 109 A.D.3d 1212, 1214, 971 N.Y.S.2d 784 [4th Dept. 2013] ; cf. VanBrocklen, 96 A.D.3d at 1394–1395, 949 N.Y.S.2d 300 ), and that the evidentiary submissions considered by the court, including the consent form, do not "establish conclusively that plaintiff has no cause of action" sounding in battery ( Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ; cf. Thaw v. North Shore Univ. Hosp., 129 A.D.3d 937, 938–939, 12 N.Y.S.3d 152 [2d Dept. 2015] ).
In view of the foregoing, we conclude in appeal No. 2 that the court erred in granting defendants' motion to dismiss plaintiff's claim for punitive damages (see generally McDougald v. Garber, 73 N.Y.2d 246, 254, 538 N.Y.S.2d 937, 536 N.E.2d 372 [1989] ; Smith v. County of Erie, 295 A.D.2d 1010, 1011, 743 N.Y.S.2d 649 [4th Dept. 2002] ; Graham v. Columbia–Presbyt.Med. Ctr., 185 A.D.2d 753, 756, 588 N.Y.S.2d 2 [1st Dept. 1992] ; Mullany v. Eiseman, 125 A.D.2d 457, 458–459, 509 N.Y.S.2d 387 [2d Dept. 1986] ).