Schel v. Roth, 242 A.D.2d 697 (N.Y. App. Div. 1997). · Go Syfert
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Schel v. Roth, 242 A.D.2d 697 (N.Y. App. Div. 1997). Cases Citing This Book View Copy Cite
17 citation events (13 in the last 25 years) across 1 distinct court.
Strongest positive: Flanagan v. Catskill Regional Medical Center (nyappdiv, 2009-08-11)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (rule) Flanagan v. Catskill Regional Medical Center
N.Y. App. Div. · 2009 · confidence medium
Moreover, the plaintiffs admit in their bill of particulars that they are not alleging an affirmative violation of Brian’s physical integrity, an essential element of this cause of action (see Smith v Fields, 268 AD2d 579, 580 [2000]; Campea v Mitra, 267 AD2d 190, 191 [1999]; Schel v Roth, 242 AD2d 697, 698 [1997]).
discussed Cited as authority (rule) Janeczko v. Russell
N.Y. App. Div. · 2007 · confidence medium
A failure to diagnose cannot be the basis of a cause of action for lack of informed consent unless associated with a diagnostic procedure that “involve [s] invasion or disruption of the integrity of the body” (Public Health Law § 2805-d [2] [b]; see Sample v Levada, 8 AD3d 465, 466-467 [2004]; Schel v Roth, 242 AD2d 697, 698 [1997]), not the case here.
discussed Cited as authority (rule) Martin v. Hudson Valley Associates
N.Y. App. Div. · 2004 · confidence medium
The plaintiffs’ allegations in the complaint, the bills of particulars, and the supplemental bills of particulars failed to state a cause of action based on lack of informed consent (see Public Health Law § 2805-d [2] [b]; Sample v Levada, 8 AD3d 465, 467 [2004]; Campea v Mitra, 267 AD2d 190, 191 [1999]; Schel v Roth, 242 AD2d 697, 698 [1997]).
discussed Cited as authority (rule) Jaycox v. Reid
N.Y. App. Div. · 2004 · confidence medium
In order to make out a valid cause of action for lack of informed consent, plaintiff was required to allege an injury or death resulting from “ ‘ “some affirmative violation of [her] physical integrity” ’ ” (Pedone v Thippeswamy, 309 AD2d 792, 793 [2003]; see Smith v Fields, 268 AD2d 579, 580 [2000]; Campea v Mitra, 267 AD2d 190, 191 [1999]; Schel v Roth, 242 AD2d 697, 698 [1997]; Hecht v Kaplan, 221 AD2d 100, 103 [1996]), “such as surgical procedures, injections or invasive diagnostic tests” (Karlsons v Guerinot, 57 AD2d 73, 82 [1977]).
discussed Cited as authority (rule) Pedone v. Thippeswamy
N.Y. App. Div. · 2003 · confidence medium
As there is no evidence in the record that the deceased died due, “in whole or in part, to his having undergone ‘some affirmative violation of his physical integrity’ in the absence of informed consent,” the cause of action based upon lack of informed consent must be dismissed (Schel v Roth, 242 AD2d 697, 698 [1997], quoting Karlsons v Guerinot, 57 AD2d 73, 82 [1977]; see Keselman v Kingsboro Med.
discussed Cited "see, e.g." Deutsch v. Chaglassian
N.Y. App. Div. · 2010 · signal: see also · confidence low
Weiser also established his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent insofar as asserted against him, and the plaintiff failed to raise a triable issue of fact in opposition (see Public Health Law § 2805-d; see also Schel v Roth, 242 AD2d 697 [1997]).
discussed Cited "see, e.g." Smith v. Fields
N.Y. App. Div. · 2000 · signal: see also · confidence low
Since the plaintiffs lack of informed consent claim essentially seeks to recover damages for the defendant’s failure to inform her of the risks of allowing periodontal disease to go untreated, it fails to state a viable cause of action for recovery (see, Iazzetta v Vicenzi, supra; see also, Schel v Roth, 242 AD2d 697 ).
Retrieving the full opinion text from the archive…
Larry W. Schel, Jr.
v.
Robert G. Roth
Appellate Division of the Supreme Court of the State of New York.
Sep 29, 1997.
242 A.D.2d 697
1997 N.Y. App. Div. LEXIS 9208
Cited by 15 opinions  |  Published

In an action to recover damages for personal injuries based on medical malpractice and lack of informed consent, the defendants Robert George Roth, Frederick Anthony Mendelsohn, Michael Ottmar Sauter, and Jack Michael Greenwood, appeal, and the defendants Lawrence Burstein, and Neurology Associates of Stony Brook, P. C., separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Suffolk County (Gowan, J.), dated August 12, 1996, as denied those branches of their motion and cross motion which were to dismiss the second cause of action based on lack of informed consent and to strike from the plaintiffs bills of particulars all reference to lack of informed consent.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the motion and cross-motion which were to dismiss the plaintiffs second cause of action to recover damages based on the lack of informed consent and to strike from the plaintiffs bills of particulars any references thereto are granted.

A defendant’s objection that a complaint fails to state a cause of action under CPLR 3211 (a) (7) may be raised in a motion “at any time even if such objection was not raised in the answer” (State of New York v Wolowitz, 96 AD2d 47, 54, citing CPLR 3211 [e]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:58, at 79; see also, [*698] Herman v Greenberg, 221 AD2d 251; Shaw, Licitra, Eisenberg, Esernio & Schwartz v Friedman, 170 AD2d 1048; Pace v Perk, 81 AD2d 444; 6A Carmody-Wait 2d, NY Prac § 38:83, at 423). There was thus no procedural impediment to the consideration of the merits of the defendants’ motion and cross motion.

Turning to the merits, we find that the defendants’ motion and cross motion, made pursuant to CPLR 3212 on a ground specified in CPLR 3211 (a) (7), should have been granted. Considering the complaint together with the bills of particulars (see, Kenneth R. v Roman Catholic Diocese, 229 AD2d 159), we find that the plaintiff is not in any way alleging that his injuries are due, in whole or in part, to his having undergone “some affirmative violation of his physical integrity” in the absence of informed consent (Karlsons v Guerinot, 57 AD2d 73, 82). Instead, the plaintiff’s allegations are essentially that, due to their negligence, the defendants failed to evaluate the seriousness of his condition, “with the result that affirmative treatment was not sought in a timely manner” (Etkin v Marcus, 74 AD2d 633). Therefore, the plaintiff failed to state a cause of action based on the lack of informed consent (see, Public Health Law § 2805-d; see also, Hecht v Kaplan, 221 AD2d 100; Iazzetta v Vicenzi, 200 AD2d 209; Keselman v Kingsboro Med. Group, 156 AD2d 334; Etkin v Marcus, supra; Karlsons v Guerinot, supra). Thompson, J. P., Joy, Friedmann and Krausman, JJ., concur.