New York State Court of Claims

New York State Court of Claims

CRUS v. STATE OF NEW YORK, #2004-018-338, Claim No. 94455


Claimant's proof fails to establish a cause of action for lack of informed consent. The claim is dismissed.

Case Information

BOB CRUS The Claimant also is known as Lester Battice
Claimant short name:
Footnote (claimant name) :
The Claimant also is known as Lester Battice
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 8, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant is suing the State of New York for damages for medical malpractice based upon

a theory of lack of informed consent. On March 8, 1996, Claimant underwent minor surgery at Gouverneur Correctional Facility (hereinafter GCF) to remove a lump on his left abdomen. At trial, Claimant testified that he had a lump and pain on his left side. The lump had grown to the size of a golf ball over the course of three to four weeks. He went on a medical "call-out" and saw Dr. Robert Kasulke. Claimant testified that due to the pain he was suffering, he signed a medical consent form[1] under duress. He also said that the doctor told him the document was to prove he was over 18 years old. The consent form indicates the surgery was to excise a lipoma.
The surgery was performed by Dr. Kasulke at the infirmary using local anesthetics. A nurse sutured him and a few weeks later Claimant was sent to E. J. Noble Hospital for x-rays. Claimant testified that he still had a lump and that there has been no diagnosis. He contends that the surgery should not have been performed in the infirmary because it is not sterile and that the doctor should have stitched him up, not the nurse.

On cross-examination, Claimant acknowledged that he signed the consent form because he was in pain; however, no one forced him to do so.

A cause of action based upon lack of informed consent is separate and distinct from a claim sounding in negligence and requires proof of specific factors as set forth in Public Health Law § 2805-d (
see Benfer v Sachs, 3 AD3d 781, 782, 783; Jolly v Russell, 203 AD2d 527, 528).
Public Health Law § 2805-d provides in pertinent part that:
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 be also 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.

Claimant's proof fails to establish a cause of action for lack of informed consent. Claimant signed a consent from acknowledging that "[t]he nature and purpose of the treatment, operation or procedure along with possible alternative treatment methods, the risks involved, and possible complications" was explained to him by Dr. Kasulke. Claimant did not call any expert witness to substantiate his claim that he did not provide adequate consent for the procedure performed. Expert testimony is required and the failure to call an expert requires dismissal of the claim pursuant CPLR 4401-a (
see Davis v Caldwell, 54 NY2d 176, 182-183; Antoine v Gulmi, 275 AD2d 294, lv denied, 95 NY2d 768). Expert medical testimony would have been required to establish any alternative theory of malpractice as well (see Duffin v State of New York, 245 AD2d 653; lv denied, 91 NY2d 810; Williams v State of New York, 164 Misc 2d 783).

October 8, 2004
Syracuse, New York

Judge of the Court of Claims

[1]Exhibit A.