129 A.D.2d 978 | N.Y. App. Div. | 1987
Judgment unanimously reversed on the law without costs and claim dismissed. Memorandum: We conclude that, on the facts of this case, claimant has not proven his claim. To establish a cause of action based on lack of informed consent, the patient must prove: (1) that the physician did not fully inform him of the various alternatives and their risks; and (2) that a reasonably prudent person, fully informed, would not have consented to the treatment (Dries v Gregor, 72 AD2d 231, 236; Fogal v Genesee Hosp., 41 AD2d 468, 473). Plaintiff was diagnosed as having lymphocytic lymphosarcoma of the right inguinal lymph node. The proof established that this form of cancer, if untreated, can spread rapidly to other areas of the body and, if it reaches the internal organs, the likelihood of successful treatment is substantially reduced and chances of survival significantly lessened. Given the life-threatening nature of the illness, it is inconceivable that a prudent person would have declined treatment.
We conclude, therefore, that the trial court’s finding of liability was against the weight of the evidence and should be set aside (see, CPLR 5501; Larkin v State of New York, 84 AD2d 438). (Appeals from judgment of Court of Claims, McMahon, J.—medical malpractice.) Present—Doerr, J. P., Boomer, Green, Pine and Lawton, JJ.
