Jolly v. Russell

—In an action to recover damages for medical malpractice, the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (Gowan, J.), dated May 19, 1991, as granted the cross motion of the respondent, Frank Russell, Jr., to dismiss the second cause of action in the amended complaint insofar as it is asserted against him, and to strike the plaintiffs’ amended bill of particulars to the extent of deleting any particulars relating to the plaintiffs’ cause of action based upon lack of informed consent.

Ordered that the order is affirmed insofar as appealed from, with costs.

This action arose from the medical treatment by the defendant hospital and the defendant-respondent doctor of the plaintiff Wilfred Jolly starting in late August 1984 when Jolly underwent surgery for gallstones and a duodenal ulcer. The plaintiffs commenced this action in April of 1987 alleging that the defendants were "careless, negligent and guilty of malpractice in the medical and hospital care rendered to” Jolly. Bills of particulars served in response to demands by both the hospital and the respondent alleged numerous specific acts of negligence on the part of both defendants, all of which centered on the diagnosis and treatment of Jolly’s condition.

In June of 1990, after certain discovery proceedings, the plaintiffs served an amended bill of particulars on the respondent which included, inter alia, allegations to support a cause of action based on lack of informed consent for the treatment in question. In August 1990 the plaintiffs moved in the Supreme Court for leave to amend their complaint to add a cause of action based on lack of informed consent. The respondent cross-moved for summary judgment dismissing the proposed cause of action and to strike the amended bill of particulars, on the ground that any new causes of action were time-barred.

In September 1990 the Supreme Court granted the plaintiffs’ motion for leave to amend their complaint, and reserved decision on the respondent’s cross motion. In the order appealed from, the court granted the respondent’s cross motion for partial summary judgment, finding that the original complaint failed to give proper notice of the transactions or occurrences which formed the basis of the cause of action based on lack of informed consent. The court therefore concluded that the new cause of action did not relate back to the original pleadings by authority of CPLR 203 (f) (formerly [e]).

The plaintiffs argue that the Supreme Court erred in its conclusion that the new cause of action did not relate back to the original complaint. We disagree, and affirm.

It is well settled that lack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence (see, Dodes v North Shore Univ. Hosp., 149 AD2d 455, 456; Culkin v Nassau Hosp. Assn., 143 AD2d 973, 974). In creating the cause of action, the Legislature not only established the unique factual allegations which support such a cause of action, but also established equally unique defenses to liability, and placed specific limitations on the types of cases in which the cause of action may be asserted (see, Public Health Law § 2805-d).

Considering the nature of the cause of action, and the distinctions to be made between allegations of lack of informed consent and allegations of general negligence, we conclude that the original pleadings in this case did not provide notice of the series of transactions or occurrences to be proved in a cause of action based on lack of informed consent (see, Smith v Bessen, 161 AD2d 847, 849). Accordingly, the cause of action to recover damages for lack of informed consent did not relate back to the interposition of the original complaint, and was therefore untimely (see, CPLR 203 [f]; 214-a).

We are unpersuaded by the argument in the dissent attempting to distinguish the decision of the Appellate Division, Third Department, in Smith v Bessen (supra). There is no indication in that decision that it was based on the specificity of the allegations of negligence in the original complaint. In addition, there is nothing to support the conclusion that the allegations in the original complaint in that case were more specific than those in the original pleadings in the present case.

Nor are we dissuaded by the reliance on this Court’s prior decision in Grosse v Friedman (118 AD2d 539), as that case is factually distinguishable. Unlike the case before us now, the record in Grosse indicates that the original bill of particulars clearly alleged facts to support a cause of action to recover damages for lack of informed consent, thereby alerting the defendant that such a claim was contemplated in the original complaint.

Accordingly, the order appealed from must be affirmed. Rosenblatt, J. P., Lawrence, Copertino and Joy, JJ., concur.