Perez v. Park Madison Professional Laboratories, Inc.

212 A.D.2d 271, 630 N.Y.S.2d 37, 1995 N.Y. App. Div. LEXIS 2216
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 20, 1995
StatusPublished
Cited by2 cases

This text of 212 A.D.2d 271 (Perez v. Park Madison Professional Laboratories, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez v. Park Madison Professional Laboratories, Inc., 212 A.D.2d 271, 630 N.Y.S.2d 37, 1995 N.Y. App. Div. LEXIS 2216 (N.Y. Ct. App. 1995).

Opinion

OPINION OF THE COURT

Ellerin, J.

The issue before us on this appeal is whether defendants failed to obtain plaintiffs informed consent before undertaking to perform the abortion procedure which is the basis of her underlying malpractice action.

On March 1, 1989, the 24-year-old unwed plaintiff, then 17 weeks’ pregnant, consulted a gynecologist about options for terminating her pregnancy. The doctor referred her to Planned Parenthood at Columbia-Presbyterian Hospital because he was unable to perform a second trimester termination at his office. Upon visiting Planned Parenthood’s offices on the following day, Ms. Perez was given a list of possible facilities where an abortion could be performed, including that of defendant, Park Madison Professional Laboratories, doing business as Eastern Women’s Center (the Center), with which she made an appointment for the next day. She arrived at the Center on the morning of March 3rd, accompanied by two of her friends, and, after completing a form detailing her medical history, she was given a blood test, a urine test and a sonogram. Of particular significance in light of her present claim, she was then asked to read a six-page packet of materials that provided a detailed description of the abortion procedure itself as well as an extensive discussion of the "possible problems related to second trimester abortions” including the potential medical and emotional risks. After reading these materials, plaintiff met with a trained counselor, Aireña Bowie, who discussed with her the alternatives to abortion, the details of the actual abortion procedure and the risks [273]*273associated with the procedure. Plaintiff signed a consent form which she acknowledged, during her deposition testimony, she had read and fully understood. The consent form contained the following statements:

"The nature and purposes of the procedure have been fully explained and I have been informed of the expected benefits and complications from known and unknown causes and attendant discomforts and risks that may arise. I fully understand that the purpose of this abortion procedure is to end my pregnancy. I know that I can continue this pregnancy to its full term, but it is my personal choice to end it now.

"I acknowledge that no guarantees or assurances have been made to me concerning the results intended from the operational procedure and I understand that I may still be pregnant following the procedure.

"I further understand that, in accordance with applicable law, any tissues removed may be examined and retained for medical or educational purposes and may be disposed of in accordance with the customary practice.

"I have been given an opportunity to ask questions and all my questions have been answered fully and satisfactorily.

"I have read and fully understand the above and affirm that all the blank spaces have been completed prior to my signing.”

The actual procedure was started later on that day by the insertion of dilators into her cervix. Prior to their insertion she was specifically told that once the dilators were inserted she was committed to completing the procedure and her written consent also included the statement that "I understand that once the dilators are inserted, I cannot change my decision to terminate my pregnancy by abortion”. When plaintiff returned the following day, March 4th, defendant-appellant Dr. Ing Yann Jeng, without any further discussion with plaintiff, completed the procedure that had been commenced the day before. Some hours later plaintiff suffered extensive bleeding and was treated at Beth Israel Medical Center for a perforation of her uterus.

When plaintiff’s mother, with whom plaintiff lived, learned of the abortion, recriminations ensued for "killing her grandchild”. Commencement of the instant action followed, charging the clinic and Dr. Jeng with both malpractice in the manner in which the procedure was performed and in failing to obtain plaintiff’s informed consent before the procedure was [274]*274undertaken in the first instance. In asserting the cause of action for lack of informed consent, plaintiff argues that she was not a proper candidate for the procedure, that it violated her religious beliefs, that she should have been talked out of it and that defendants did not try to stop her from going forward with the procedure.

After the completion of depositions, the individual defendant, Dr. Jeng, moved for summary judgment on plaintiffs cause of action for lack of informed consent. The IAS Court initially granted the motion, holding that "[i]t is undisputed that Jeng’s first contact with the plaintiff occurred only after the abortion procedure had been irreversibly commenced”. Subsequently, upon a motion for reconsideration based upon plaintiffs submission of excerpts from the deposition of Dr. Arnon, the acting medical director of the defendant clinic at the time of the procedure, the court reversed itself and denied summary judgment to defendant Jeng on the ground that there were disputed issues of fact as to whether his first contact with the plaintiff occurred only after the abortion procedure had been irreversibly commenced and whether the procedure was irreversible once the dilators had been inserted. We reverse.

This State has no statute singling out abortion from other medical procedures as requiring specific methods to assure that a woman’s consent is informed. As in any case, Public Health Law § 2805-d (1) requires that the provider "disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical * * * practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.” In order to prevail on a claim of lack of informed consent, plaintiff must also show that, had a reasonable person in her position been properly informed of the risks and alternatives, she would not have undergone the procedure (Public Health Law § 2805-d [3]).

As to the claim of not being adequately advised of the physical consequences that might ensue from the procedure, the record clearly establishes that plaintiff was advised of the possible risks of hemorrhage and perforation, as allegedly here occurred. While the brief submitted on her behalf claims that she never acknowledged being supplied with or reading the information allegedly supplied to her by the clinic, which included the information warning her of such risks, plaintiff never refuted the evidence that these materials were given to [275]*275her and her own deposition testimony established that she read everything that she was given.

Plaintiff’s argument concerning the psychological harm which she has allegedly suffered is of a different tenor. According to plaintiff, this harm includes mental anguish, neurosis, guilt, sleeplessness and depression from the awareness that, by reason of defendant’s negligence, she needlessly committed an act which is in violation of her deep-seated convictions. These alleged injuries are not claimed to be a result of defendants’ negligence in the manner in which the abortion was performed but, rather, a result of the very performance of the abortion itself and the consequential termination of her pregnancy. Plaintiff thus argues that she should have been informed prior to the abortion that undergoing the procedure itself could result in such severe regret as to cause psychological harm.

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Bluebook (online)
212 A.D.2d 271, 630 N.Y.S.2d 37, 1995 N.Y. App. Div. LEXIS 2216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-park-madison-professional-laboratories-inc-nyappdiv-1995.