Wigand v. Modlin

Appellate Division of the Supreme Court of New York

Wigand v. Modlin

69 A.D.3d 615, 892 N.Y.2d 483

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 5, 2010

StatusPublished

This text of 69 A.D.3d 615 (Wigand v. Modlin) 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

Wigand v. Modlin, 69 A.D.3d 615, 892 N.Y.2d 483 (N.Y. Ct. App. 2010).

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Opinion

Although the plaintiff established her prima facie entitlement to judgment as a matter of law on the cause of action to recover damages for medical malpractice (see Public Health Law § 2805-d; Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]; Feinberg v Feit, 23 AD3d 517, 518-519 [2005]), the defendant raised a triable issue of fact as to whether he deviated from the relevant standard of care (see Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563, 565-567 [2009]; DiMitri v Monsouri, 302 AD2d 420, 420-421 [2003]). Similarly, in response to the plaintiff’s establishment of her prima facie entitlement to judgment as a matter of law on the cause of action alleging lack of informed consent, the defendant raised a triable issue of fact as to whether the risks at issue were foreseeable and, therefore, should have been communicated to the plaintiff prior to the procedure (see Public Health Law § 2805-d; Spano v Bertocci, 299 AD2d 335, 337-338 [2002]; Bernard v Block, 176 AD2d 843 [1991]). Accordingly, the Supreme Court properly denied the plaintiffs motion for summary judgment on the issue of liability (see Feinberg v Feit, 23 AD3d at 519; Shields v Baktidy, 11 AD3d 671, 672 [2004]). Rivera, J.E, Miller, Leventhal and Chambers, JJ., concur.

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Although the plaintiff established her prima facie entitlement to judgment as a matter of law on the cause of action to recover damages for medical malpractice (see Public Health Law § 2805-d; Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]; Feinberg v Feit, 23 AD3d 517, 518-519 [2005]), the defendant raised a triable issue of fact as to whether he deviated from the relevant standard of care (see Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563, 565-567 [2009]; DiMitri v Monsouri, 302 AD2d 420, 420-421 [2003]). Similarly, in response to the plaintiff’s establishment of her prima facie entitlement to judgment as a matter of law on the cause of action alleging lack of informed consent, the defendant raised a triable issue of fact as to whether the risks at issue were foreseeable and, therefore, should have been communicated to the plaintiff prior to the procedure (see Public Health Law § 2805-d; Spano v Bertocci, 299 AD2d 335, 337-338 [2002]; Bernard v Block, 176 AD2d 843 [1991]). Accordingly, the Supreme Court properly denied the plaintiffs motion for summary judgment on the issue of liability (see Feinberg v Feit, 23 AD3d at 519; Shields v Baktidy, 11 AD3d 671, 672 [2004]). Rivera, J.E, Miller, Leventhal and Chambers, JJ., concur.

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Bluebook (online)

69 A.D.3d 615, 892 N.Y.2d 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wigand-v-modlin-nyappdiv-2010.

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