Delos-Santos v. Kaisman

Summary

The New York Appellate Division, Second Department affirmed an order denying Arden Kaisman's motion for summary judgment in a medical malpractice and lack-of-informed-consent action. The court held that the defendant's expert affidavit failed to address all specific malpractice allegations and that the submissions did not establish, as a matter of law, that the plaintiff had received adequate informed consent.

Holdings

1. The defendant was not entitled to summary judgment because his expert affidavit failed to address and rebut all of the specific allegations of medical malpractice and therefore failed to eliminate all triable issues of fact concerning the alleged departures and proximate cause.
2. The defendant was not entitled to summary judgment because his submissions did not establish prima facie that the plaintiff was informed, in a language she could understand, of the risks, benefits, and alternatives to the endoscopic lumbar discectomy, and the evidence revealed a factual dispute concerning informed consent.

Questions Presented

1. Whether the defendant established prima facie entitlement to summary judgment on the medical malpractice claim by addressing and rebutting all specific allegations of departure and proximate causation.
2. Whether the defendant established prima facie entitlement to summary judgment on the lack-of-informed-consent claim through the consent form, deposition testimony, and other submissions.

Disposition

affirmed