John L.A. Lyddane
The fact that a patient may be found to have contributed to a lack of informed consent has been long recognized in the case law of New York, but is underappreciated in current practice. For more than 30 years the courts have recognized that the culpable conduct of the patient will reduce the exposure of the medical practitioner for lack of informed consent. Suria v. Shiffman, 107 A.D.2d 309 (1st Dept. 1985); Tenney v. Bedell, 624 F. Supp. 305 (SDNY 1985); Bellier v. Bazan, 124 Misc.2d 1055 (Sup. Ct. N.Y. Co. 1984).
Because the informed consent cause of action is statutory, having been codified in New York Public Health Law §2805-d, it might be expected that the statute would provide guidance to the defenses available to one who is defending such a claim. In general terms the statute provides that the reasonably foreseeable risks of non-emergency invasive treatment be disclosed to the patient prior to the procedure so that when consent is given, it is based upon information which has educated the patient to the point where an informed decision can be made.
