The opinion of the court was delivered by: McKENNA, D.J.
Plaintiff brings this action against a plastic surgeon (Dr. Coleman), an anesthesiologist (Dr. Wemm), and a group of physicians with whom they are affiliated for malpractice and failure to obtain plaintiff's informed consent in relation to a plastic surgery procedure performed in October of 2004.*fn1
A motion for summary judgment must be granted where "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." A "genuine issue" exists for summary judgment purposes where the evidence, viewed in the light most favorable to the nonmoving party, is such that a reasonable jury could decide in that party's favor. Although all inferences must be drawn in favor of the nonmoving party, mere speculation and conjecture is insufficient to preclude the granting of the motion.
Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 498-99 (2d Cir. 2001) (quoting Fed. R. Civ. P. 56(c)) (other citations omitted).
Briefly, the procedure involved the injection into plaintiff's face of fat removed from other parts of her body. In her first claim, for medical malpractice (Am. Compl. ¶¶ 32-48), plaintiff alleges that due to defendants' negligence and malpractice, she sustained severe trauma to the muscle and surgical area, permanent swelling and the formation of irregular, asymmetrical, hard and lumpy scar tissue all over the face, a decrease in sensitivity in the face, permanent swelling, excessive scarring and excessive presence of scar tissue, decreased lymphatic function, anxiety, post traumatic stress and insomnia, which will continue to cause her pain and suffering for the remainder of her life and as a result of which plaintiff GUTTI BROWN will continue to be incapacitated and prevented from performing useful and remunerative work both in her professional and personal lives and was otherwise rendered sick, sore, lame and disabled. (Id. ¶ 45.) In her second claim, for lack of informed consent (id. ¶¶ 49-53), plaintiff alleges that she was permanently injured, was deprived of a substantial possibility for a cure and/or a significant lessening of the permanent effects of her injuries, was caused to experience severe physical and psychological pain and suffering, required one or more surgeries and/or procedures and other treatment, incurred expenses, lost earnings, shortened life expectancy and in other respects was damaged. (Id. ¶ 52.)
Plaintiff contends that the following facts are not in dispute: that Dr. Wemm "did not fully discuss the specific type of anesthesia to be rendered with the plaintiff," that he "presented Plaintiff with an anesthesia consent form" but "she was unable to read the entire form as Dr. Wemm rushed her to sign it," that "[s]aid consent form specifically called for Intravenous Sedation which would cause plaintiff to experience retrograde amnesia as well as deep sedation... contrary to plaintiff's express wish to remain awake during the procedure," and that "Plaintiff was given a mixture of medications for the procedure which were a little excessive." (Pl. Rule 56.1 Statement ¶¶ 1-4 (citations omitted).)
Plaintiff's expert, John Herbert, M.D., states it as his opinion that Dr. Wemm deviated from the accepted standards of care in that he (1) "did not adhere to the patient's wishes to remain alert during the procedure despite assuring her that she would be," (2) "failed to document that the plaintiff wished to be awake during the procedure," (3) "injected the patient in the consultation room, sitting in a chair in the absence of any female attendant," and (4) "permitted the surgeon to perform a procedure for which he lacked proper consent...." (Herbert Aff. (Zack Decl. Ex. A) ¶ 6.)
Dr. Wemm contends that "[p]rior to the surgery [he] obtained a history and performed a focused physical examination of the plaintiff [and] also discussed the anesthesia to be rendered with the plaintiff," and that "[f]ollowing the conversation, the plaintiff signed a consent form for IV sedation," which "consent form specifically states that [plaintiff] understood and accepted the planned anesthetic and had all questions answered to her satisfaction." (Def. Rule 56.1 Statement ¶¶ 2-4 (citations omitted)).
Dr. Wemm's expert, Meg Rosenblatt, M.D., states that Dr. Wemm "administered all appropriate medications and anesthetic agents to the plaintiff during the cosmetic procedure and there were no anesthetic complications" and that Dr. Wemm "did not deviate from the standard of care and that nothing that Dr. Wemm did or failed to do caused or contributed to any of the plaintiff's alleged injuries." (Rosenblatt Aff. (Brady Decl. Ex. 12) ¶ 12.)
"'To establish a prima facie case of liability in a medical malpractice action, the plaintiff must prove that the defendant physician departed from good and accepted standards of medical practice and that the departure was the proximate cause of the injury or damage.'" Johnson v. Jacobowitz, 884 N.Y.S.2d 158, 161 (2d Dep't 2009) (quoting Biggs v. Mary Immaculate Hosp., 758 N.Y.S.2d 83, 85 (2d Dep't 2003)) (other citations omitted).
To demonstrate a lack of informed consent, the plaintiff is required to establish that (1) the defendant failed to disclose the material risks, benefits, and alternatives to the surgery which a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the plaintiff to make a knowledgeable evaluation, and (2) a reasonably prudent person in ...