doctors and their patient new york public health law two thousand eight hundred and five the requires a doctor to have a thorough informed consent conversation with her patient before obtaining consent to medical treatment the legal standard is that at a minimum  doctor must disclose the reasonably foreseeable risks and benefits of the proposed treatment as well as the alternatives to the treatment in a manner permitting the patient to make a knowledgeable decision this case is before the court today because defendant doctor mcafee and failed to meet even the most basic responsibility the record is undisputed that defendant did not disclose any of the alternatives or many of the reasonably foreseeable risks of the surgery she performed on play the us as a matter of law the senate did not obtain played some form consent and the jury's verdict was against the weight of the evidence a trial defended and did that when she met with plaintiffs and signed her up for a complicated series of foot reconstruction procedures she implanted had only a superficial discussion which covered none of the alternatives and just a small handful of the reasonably foreseeable risks they said surgical procedures defendant was proposing because the senate le plaintiff to believe that these procedures were much more safe and simple than they truly were plaintiffs agreed to undergo what turned out to be a disastrous total foot reconstruction surgery she openly suffered severe complications which were known risks of these procedures but which defendant never disclosed the juries and trial judges conclusions that the senate did not have to meet the disposer duty imposed on her by the public health law were incorrect as a matter of law and play to the title good to trial the entire point of new york's informed consent statute is to in trying to unlock a doctors to do sherry duty to fully educate her patients about their treatment options here however defendant freely testified that she did not discuss any alternatives treat with the plaintiffs although both she and her expert admitted it trial but several alternatives existed she also testified that several risks of the surgery are reasonably foreseeable that she had not informed plaintiff of those risks specifically she testified that she only disclosed the risk of room problems hardware failure and the foot not looking normal post surgery but she also testified that complications such as numbness a prolonged recovery time post mal union and nonunion of the bones of the foot follow up surgeries and prolong swelling were all foreseeable risks that the surgery her own expert also admitted that several of these not disclosed risks were forseeable in other words defendant's own evidence stablished that she did not even come close to fulfilling her responsibility to have a thorough informed consent conversation with plaintiff this weapon if it is a new it's a new york law that you have to prise the patient of every single possibility no matter how likely it is to occur you know it's not it's that the doctor has to disclose all reasonably foreseeable risks but there was not testimony at trial that any of these risk were so remote as to not fall into the reasonably foreseeable range it was more that the doctor felt apparently that he only had to disclose what was likely and if something was merely unlikely she didn't she felt she did not have to disclose it well that was argued to the jury but i mean that was the whole point right wasn't the argument of the defense  consent form that the plaintiffs signed about a month and a half after having this conversation with the doctor but your president is clear that even when there is a signed consent form if there's clear testimony that the consent form is not accurate and that the the things on the form were not actually discussed but the form is not dispositive of whether that conversation was had and he or the doctor testified specifically that she went through the form that it looked at it on the stand and said that she did not actually have the conversation with plaintiffs that the form said she had so her experts her experts conclusion because it was based primarily on that form was incorrect as a matter of law because it was against her own evidence and what what she said instead of saying that she disclosed all the reasonably foreseeable risks and all the alternatives was that she she testified as to her expertise well that she didn't have to have a detailed conversation with plaintiff because quote she came to discuss surgery and we would argue this is a mis misinterpretation of the law which would create a catch twenty two dollars or if a patient seeks out vice of a medical specialist or expresses any interest in elective treatment options doctors do you to provide disclosures would somehow be waived because the patient that the doctor did not have to have all of the instructions to give all the advice to the patient that you say was not given the jury was instructed on the requirements of public health  now so the real disputed trial was whether or not the doctor had disclosed the reasonable reasonably foreseeable risks right that's really what this people was with respect to the informed consent course of action right not not really because because she testified as did her expert that she had only disclosed a small amount of risks and that she had not discussed any alternatives to surgery with the that but that was the testimony she said she did say that some of them are rare but there was really no discussion at trial of how rare or whether they were rare enough to warrant non disclosure but that's for the jury to determine whether these are reason yes but the jury has to have some basis in the testimony and doctor max ian did not say that these were so rare that she would have had to disclose she said that you know  there improbable they usually don't happen but she and her own expert on examination admitted that these are known risks that that that complications such as nonunion of the bones and value  provide adequate information to dr to mister mister mauro tartaglia to make a decision as to whether or not she wanted to proceed with the surgery oh doctor max ian and our expert witness doctor mann testified that adequate information was communicated to tartaglia plaintiffs disputed that with their expert witness doctor bach and the jury made a determination between the experts and all the testimony and they made credibility determinations and they determined that reasonable information was given to her to make an informed decision to proceed with the surgery much of the appellant's brief is devoted to the allegation that doctor maxie and is claiming that she did not have to comply with the public health law because this is an elective procedure and that is simply not the case that argument was never made it was argued that we should have disclosed alternatives to treatment miss morrow tartaglia both our expert witness and doctor max and testified that there really weren't any alternatives to treatment other than to simply accommodate the fix deformities in her forte that for example physical therapy things along those lines could not help these fix deformities and most telling the plaintiffs herself admitted that she understood number one that she did not have to have this surgery and number two that there was no risk not having the surgery appellant's try to make this out like this is a case where a person comes to a doctor with atrial fib tribulation and the doctor is suggesting surgery in that certain case there are risks potentially grave risks to not having the surgery as well as risks having the surgery in this case the testimony from our expert witness and doctor maxine was that there was no risk whatsoever to not having the foot surgery and that the plaintiff knew that she did not  surgery well the point is that these alternatives are not alternatives at all they're there they're accommodations are there sort of coping mechanisms but they're not treatment right exactly judge what about pain how did the doctor and her description of what she normally would have had adequately informed the patient at the time to deliver continued pain after surgery well there was testimony that there would obviously be pain after the surgery the plaintiffs in this case is claiming that she has basically permanent pain in the foot both dr max and i believe doctor mann testified that that is not something that t occurs where someone has this foot reconstructive surgery and then has to proceed with pain management and in my mind that was probably tied up with the testimony and all the evidence in the medical negligence claim that was rejected by the jury where an expert neurologist on our end showed that there wasn't a fact no objective evidence of any nerve injury  what we have here basically is a case where the mere fact that there was that the evidence conflicted is not a basis to set aside the verdict that is what trials are all about there was no objection to the jury charge there was no motion for a directed verdict that was denied and then appealed there was no objection to the jury verdict form in this case there  contrast being testimony from the plane to from doctor max and from our experts from the plaintiff's experts the jury weighed the credibility they came to a unanimous determination that proper information was communicated to the plaintiffs the matter was fully and exhaustively briefed before judge hummel who was the judge who sat through the entire trial who agreed that there was not grounds to set aside the verdict as against the weight of the evidence there is no indication that the that that that the jury verdict was you know so against the weight of the evidence as to be a miscarriage of justice this is basically a typical medical malpractise trial that and those with experts and witnesses disagreeing with each other and the jury trying to figure out what the proper outcome is it's an outcome that the plaintiff was not happy with but it is certainly in our mind not a miscarriage of justice your honors you thank you miss watson again we certainly disagree that this was a credibility dispute because as as we argued extensively in our briefings even setting aside all the plaintiff testimony all of her expert testimony even the testimony of the defendant and her own expert was not sufficient to show that she had given informed consent and in fact indicated that she definitely had not especially on the on the alternatives that plaintiffs had to surgery the fact that plaintiffs knew she couldn't have surgery she could opt not to have surgery that this was elective does not mean that she understood what that meant to not have surgery versus to go with this procedure versus possibly to go to some other procedure the sentence expert was actually one of the other procedures that were presented to the jury bigger shoes you think is an alternative treatment it's it is an alternative alternative treatment in the sense that it's something that she could do with a doctor's advice daryn back to deborah but she could never get out of bed do i suppose and that would be an alternative but it's not a treatment right it's not a treatment but it's an alternative to treatment doesn't have to be another treatment it can non treat could could be an alternative which may cause the plane to cause the patient to continue on in their same state it could mean that they get worse in the future it could mean that they could have lifestyle modifications to manage it and there's no indication that they had any discussion of what this what this means to her she it's not enough that she just knew that that was an option if she didn't understand what it entailed i mean we would we would liken this to issues that arise in the context of a law for example this judge is you taking guilty pleas from defendants you know that federal rule of criminal procedure eleven requires the judge to discuss a lengthy list of topics with the defendant in court before accepting a guilty plea obviously it would be almost impossible to find a defendant that doesn't  that they have a choice whether or not to plead guilty but that does not mean that they understand that choice and the remedy but then that your client on cross that she she knew that there were no risks to not having the surgery so is the problem that she just wasn't told enough about what it would be like to manage without surgery that yes that's the that's the alternative part of it and that she didn't understand both she didn't understand what that would mean for her as far as managing it and she didn't understand it on the risk side the how how risky these procedures actually were those those two parts taken together