N.Y. Public Health Law § 2805-d: Limitation of medical, dental or podiatric malpractice action based on lack of informed consent

§ 2805-d. Limitation of medical, dental or podiatric malpractice

action based on lack of informed consent. 1. Lack of informed consent

means the failure of the person providing the professional treatment or

diagnosis to disclose to the patient such alternatives thereto and the

reasonably foreseeable risks and benefits involved as a reasonable

medical, dental or podiatric practitioner under similar circumstances

would have disclosed, in a manner permitting the patient to make a

knowledgeable evaluation.

2. The right of action to recover for medical, dental or podiatric

malpractice based on a lack of informed consent is limited to those

cases involving either (a) non-emergency treatment, procedure or

surgery, or (b) a diagnostic procedure which involved invasion or

disruption of the integrity of the body.

3. For a cause of action therefor it must also be established that a

reasonably prudent person in the patient's position would not have

undergone the treatment or diagnosis if he had been fully informed and

that the lack of informed consent is a proximate cause of the injury or

condition for which recovery is sought.

4. It shall be a defense to any action for medical, dental or

podiatric malpractice based upon an alleged failure to obtain such an

informed consent that:

(a) the risk not disclosed is too commonly known to warrant

disclosure; or

(b) the patient assured the medical, dental or podiatric practitioner

he would undergo the treatment, procedure or diagnosis regardless of the

risk involved, or the patient assured the medical, dental or podiatric

practitioner that he did not want to be informed of the matters to which

he would be entitled to be informed; or

(c) consent by or on behalf of the patient was not reasonably

possible; or

(d) the medical, dental or podiatric practitioner, after considering

all of the attendant facts and circumstances, used reasonable discretion

as to the manner and extent to which such alternatives or risks were

disclosed to the patient because he reasonably believed that the manner

and extent of such disclosure could reasonably be expected to adversely

and substantially affect the patient's condition.