RICOTTA & VISCO, BUFFALO (KATHERINE V. MARKEL OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.
A. STRAUSS, NORTH COLLINS, FOR PLAINTIFFS-RESPONDENTS.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND
from an order of the Supreme Court, Erie County (Catherine R.
Nugent Panepinto, J.), entered May 4, 2016. The order, inter
alia, denied that part of the motion of defendants for
summary judgment dismissing the complaint with respect to the
medical malpractice cause of action.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
These consolidated appeals arise from a medical malpractice
action in which plaintiffs seek damages under several legal
theories for, inter alia, bowel perforation injuries
allegedly arising from an operation performed upon Kandis
Tirado (plaintiff). In appeal No. 1, defendants appeal from
an order that, inter alia, granted that part of their motion
for summary judgment dismissing the complaint only with
respect to the cause of action for "assault and/or
battery" and denied that part of their motion with
respect to the medical malpractice cause of action based on
lack of informed consent. In appeal No. 2, defendants appeal
from a subsequent order granting plaintiffs' motion for
leave to reargue with respect to the cause of action for
"assault and/or battery" and, upon reargument,
vacating that part of the order in appeal No. 1 dismissing
that cause of action, and reinstating it.
first the issues in appeal No. 2, we note at the outset that
defendants do not address on appeal the assault claim that
Supreme Court reinstated and, consequently, have abandoned
any contentions with respect to that claim (see Ciesinski
v Town of Aurora, 202 A.D.2d 984, 984 [4th Dept 1994]).
contend with respect to the battery claim that the court
erred in reinstating that claim because plaintiffs cannot
state a claim for battery under the circumstances presented.
We reject that contention. 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, 1395 [4th Dept 2012]; see
Levin v United States, 568 U.S. 503, 512-513 ;
Matter of Small Smiles Litig., 125 A.D.3d 1287, 1288
[4th Dept 2015]). Here, plaintiffs allege in the complaint
that "defendant physician knew that... she was exceeding
the scope of... plaintiff's consent by performing a
medical procedure that... plaintiff had not authorized"
(Ponholzer v Simmons, 78 A.D.3d 1495, 1496 [4th Dept
2010], lv dismissed 16 N.Y.3d 886');">16 N.Y.3d 886 ) and,
inasmuch as defendants do not challenge the battery claim
with respect to the element of causation, we conclude that
plaintiffs have stated such a claim.
further contend in appeal No. 2 that the court erred, upon
reargument, in denying that part of their motion for summary
judgment dismissing the battery claim. We likewise reject
that contention and conclude that defendants failed to meet
their initial burden with respect to that part of the motion,
thereby requiring denial of the motion to that extent
"regardless of the sufficiency of the opposi[ng]
papers" (Bongiovanni v Cavagnuolo, 138 A.D.3d
12, 17 [2d Dept 2016]; see generally Winegrad v New York
Univ. Med. Ctr., 64 N.Y.2d 851, 853 ).
Specifically, defendants failed to meet their burden of
establishing that defendant doctor did not know that
"she was exceeding the scope of... plaintiff's
consent by performing a medical procedure that... plaintiff
had not authorized" (Ponholzer, 78 A.D.3d at
1496; see generally Wiesenthal v Weinberg, 17 A.D.3d
270, 270-271 [1st Dept 2005]).
appeal No. 1, defendants contend that the court erred in
denying that part of their motion for summary judgment
dismissing the medical malpractice cause of action for lack
of informed consent. We reject that contention. It is well
settled that, in order "[t]o succeed in a medical
malpractice cause of action premised on lack of informed
consent, a plaintiff must demonstrate that (1) the
practitioner failed to disclose the risks, benefits and
alternatives to the procedure or treatment that a reasonable
practitioner would have disclosed and (2) a reasonable person
in the plaintiff's position, fully informed, would have
elected not to undergo the procedure or treatment"
(Orphan v Pilnik, 15 N.Y.3d 907, 908 ;
see Public Health Law § 2805-d , ). In
the relevant part of the complaint, plaintiffs allege that
defendants failed to warn plaintiff of the risk of injury to
her bowel. Defendants therefore were required to establish on
their motion that, "prior to the procedure, ...
plaintiff had been told to consider [a risk of injury to her
bowel] as being among the reasonably foreseeable risks of the
proposed procedure" (Colon v Klindt, 302 A.D.2d
551, 553 [2d Dept 2003] [internal quotation marks omitted];
see Wilson-Toby v Bushkin, 72 A.D.3d 810, 811 [2d
Dept 2010]). In our view, defendants failed to meet that
reject defendants' contention that they met their burden
by submitting an affidavit of a medical expert who opined
that defendants provided sufficient warnings to plaintiff of
the risk of injury to her bowel. It is well settled that a
defendant's "burden is not met if the
defendant's expert renders an opinion that is...
unsupported by competent evidence"
(Bongiovanni, 138 A.D.3d at 17; see generally
Diaz v New York Downtown Hosp., 99 N.Y.2d 542, 544
). Furthermore, it is equally well settled that
"opinion evidence must be based on facts in the record
or personally known to the witness" (Hambsch v New
York City Tr. Auth., 63 N.Y.2d 723, 725  [internal
quotation marks omitted]; see Sample v Yokel, 94
A.D.3d 1413, 1414 [4th Dept 2012]). Here, in addition to the
expert's affidavit, defendants submitted plaintiff's
deposition testimony, in which plaintiff stated that she
directed defendant doctor, "don't touch my bowel,
" and that the doctor told her, "Honey, I promise
you nothing will happen to your bowel, " and "[i]f
anything is close to your bowel, I will not touch it."
The expert had no personal knowledge of the operative facts.
Rather he based his opinion on, inter alia, his conclusion
that "[t]here is no deposition testimony from the
patient that she specifically instructed Dr. Koritz not to
touch her bowel." Because the expert's opinion is
directly contradicted by the facts upon which he purportedly
based that opinion, "there was no basis for any opinion
and the attempted opinion was worthless as evidence"
(Cassano v Hagstrom, 5 N.Y.2d 643, 646 ).
Thus, "inasmuch as the expert affidavit tendered by
defendant[s] do[es] not establish that the cause of action
has no merit so as to entitle defendant[s] to summary
judgment, ' [their] motion was properly denied"
(Jones v G & I Homes, Inc., 86 A.D.3d 786, 789
[3d Dept 2011]).
addition, although defendants introduced evidence that
defendant doctor provided warnings to plaintiff, as noted
above, defendants also introduced plaintiff's testimony
to the contrary, as well as plaintiff's medical records,
which are rife with examples of plaintiff's prior bowel
difficulties and her expressions of her strong desire that
she not undergo any further procedures that could impact her
bowel. Therefore, because "defendants' submissions
included... plaintiff's deposition testimony, they failed
to establish, prima facie, that there were no triable issues
of fact with respect to the cause of action alleging lack of
informed consent" (Thaw v North Shore Univ.
Hosp., 129 A.D.3d 937, 939 [2d Dept ...