OPINION OF THE COURT
Thе principal issue raised is whether the performance of a consented-to nonemergency surgical procedure by a physician, other than the one to whom consent was given, constitutes a battery.
Plaintiffs move to dismiss Dr. Morgenstern’s defense of lack of service. Dr. Morgenstern cross-moves to dismiss the action as against him for lack of proper service. He also cross-moves with Dr. Krumholz and Lenox Hill Hospital, pursuant to CPLR 3211 (a) (7) and 3212, to dismiss plaintiffs’ first and second causes of action sounding in assault and battery.
With respect to the application which seeks tо dismiss the plaintiffs’ causes of action for assault and battery, defendants assert that in this case where plaintiff consented to the elective nonemergency procedure performed but where plaintiff claims that he did not consent to its performance by defendant Dr. Morgenstern — apparently a fellow at defendant Lenox Hill Hospital — but only consented to its perfоrmance by defendant Dr. Krumholz, plaintiff’s private physician, a claim for assault and battery will not lie and that plaintiff must pursue this claim solely through the lack of informed consent cause of action pleaded in the complaint.
Defendants maintain that the causes of action for assault and battery must be dismissed because medical treatment rendered beyond the scopе of a plaintiff’s consent does not constitute assault and battery but merely a lack of informed consent. Defendants assert that the intent to do harm or carry out offensive bodily contaсt is a necessary element of a claim for assault or battery and that, since no one intended to harm the plaintiff, he has failed to state a valid claim.
Plaintiffs’ counsel asserts that an intent to do harm is unnecessary to state a valid claim for assault or battery. Plaintiffs’ counsel notes that a cause of action for lack of informed consent is based on a failure of the person providing the treatment to disclose what he intends to do, the alternatives to, and the risks and benefits of the procedure, not on a failure to advise who will perform the procedure. Here, plaintiffs’ counsel concedes that plaintiff gave defendant Dr. Krumholz, a board-certified gastroenterologist, permission to per
In response, defense counsel raised a new ground for dismissal of the assault and battеry claims and points to the fact that plaintiff had in fact signed a consent form authorizing Dr. Krumholz "and whomever he may designate as his associate or assistants” to provide the surgical services including a colonoscopy or polypectomy. Defense counsel also claimed in his reply that it is well known that Lenox Hill is a teaching hospital and that as such residents and fellows routinely assist the attending physician. Defense counsel claims that by seeking treatment at Lenox Hill Hospital plaintiff consented to having residents and fellows assist in the procedure.
Plaintiffs’ counsеl then submitted a surreply asserting that the consent form merely raised an issue of fact. This assertion is to some extent supported by the complaint personally verified by the plaintiff in which he alleges that he was not advised that Dr. Morgenstern would perform all or part of the procedure and that he would not have undergone the procedure if told that it was to be used as a teаching exercise for Dr. Morgenstern. Plaintiffs’ counsel also notes that defense counsel has no firsthand knowledge as to the hospital’s custom and practice regarding surgical procedures.
Plaintiff’s claim for assault is dismissed. "An assault is the intentional placing of another in apprehension of imminent harmful or offensive contact.” (2 NY PJI 17 [1995 Supp]; PJI 3:2.) Here, where it is claimed that the plaintiff wаs unconscious, he could not have been in apprehension of imminent harmful or offensive contact.
As to the battery claim, it is true "that medical treatment beyond the scope of patient’s consent should not be considered” as a battery (Dries v Gregor,
For purposes of this motion plaintiff is not clаiming that the risks of the colonoscopy were never explained to him. Moreover, the essence of plaintiff’s grievance, namely that he never consented to the performаnce of the procedure by Dr. Morgenstern and was offended by it, does not require expert medical testimony as would normally be true with an informed consent claim, since lack of an informеd consent is a form of malpractice. Thus the cases holding that the failure to inform the patient of the risks of a consented-to surgery amounts to a lack of informed consent are inapposite.
It is well settled that the intent to do harm is not a necessary element of a battery. (See, Oates v New York Hosp., supra, at 370; Masters v Becker,
Although there is one case (see, Henry v Bronx Lebanon Med. Ctr.,
While there is no duty for a mere assistant to obtain a patient’s informed consent (see, Spinosa v Weinstein, supra, at 38-41) in the instant case defendants, who have moved for summary judgment and thus have the burden of establishing their entitlement to the relief sought, have set forth no facts establishing that Dr. Morgenstern was a mere assistant supervised by Dr. Krumholz. Defendants’ mоtion appears to be premised on Dr. Morgenstern’s having performed the operation. Defendants do not even state whether Dr. Krumholz was in the operating room at the time in issue. The complaint in this action suggests that even plaintiffs are not sure to what extent Dr. Morgenstern performed the procedure or to what, if any, extent Dr. Krumholz supervised Dr. Morgenstern during the procedurе, and may therefore need discovery on these issues.
Accordingly, the branch of defendants’ motion which seeks to dismiss the plaintiff’s battery claim is denied without prejudice to renewal after thе completion of discovery in this action.
With respect to the motion and branch of the cross motion pertaining to service on Dr. Morgenstern, plaintiffs’ process server alleges that process was personally delivered to Dr. Morgenstern on August 1, 1994. Dr. Morgenstern denies that process was personally delivered to him on that day and asserts through his affidavit and that of his office manager that the process server delivered the summons and complaint to his office manager on August 1, 1994 when he (Dr. Morgenstern) was absent from the office, and that the office manager latеr that day gave the summons and complaint to him. In light of these conflicting affidavits counsel agreed on oral argument that a traverse was necessary on the issue of whether Dr. Morgenstern was served on August 1, 1994 pursuant to CPLR 308 (1).