Ford v. Litvak

Summary

The Appellate Division, Second Department, affirmed an order denying the defendant physician's motion for summary judgment in an action alleging medical malpractice and lack of informed consent. The court held that conflicting expert opinions raised triable issues of fact regarding the failure to confirm that the plaintiff had a gallbladder before surgery and regarding informed consent.

Holdings

1. The defendant established a prima facie entitlement to summary judgment on the medical-malpractice claim, but the plaintiff's expert affirmation raised a triable issue of fact concerning whether the defendant departed from the standard of care and whether that departure caused injury. Summary judgment was therefore properly denied.
2. The defendant established a prima facie entitlement to summary judgment on the lack-of-informed-consent claim, but the plaintiff's expert affirmation raised triable issues of fact. The claim therefore could not be dismissed on summary judgment.

Questions Presented

1. Whether the defendant was entitled to summary judgment on the medical-malpractice claim after submitting expert evidence that his treatment complied with accepted medical practice and did not cause injury.
2. Whether the plaintiff raised a triable issue of fact on the medical-malpractice claim through contrary expert evidence.
3. Whether the defendant was entitled to summary judgment on the lack-of-informed-consent claim based on expert evidence, deposition testimony, and a signed consent form.
4. Whether the plaintiff raised a triable issue of fact on the lack-of-informed-consent claim through a contrary expert affirmation.

Disposition

affirmed