First Department Upholds Dismissal of Lack of Informed Consent Claim
SACS is pleased to report another win before the Appellate Division, First Department, where the Court upheld the dismissal of a lack of informed consent claim based on prevailing medical literature.
The Court found that:
“Defendants submitted their expert's affirmation, which was not refuted by plaintiffs' experts' affidavits, that to a reasonable degree of medical certainty, based upon the robust published medical literature, a CVS procedure performed after 10 weeks gestational age has no proven association with increased risk for fetal severe limb reduction abnormalities such as that observed in the infant… Nor did plaintiff contradict defendant's expert's conclusion that there was no medical evidence causally linking the lack of informed consent claim with the injury claimed here.”
The Court also held that plaintiffs failed to raise an issue of fact sufficient to warrant denial of summary judgment, noting that their experts’ affidavits did not support the proposition that all women, regardless of gestational age, should be advised that CVS carries a risk of the type of injury sustained.
This decision reinforces the importance of evidence-based medicine and expert support in informed consent claims.
Congratulations to Lena Holubnyczyj for drafting the answering brief and Nicholas Tam for skillfully arguing the appeal.