Failure-to-Diagnose Allegations Do Not Support a Separate Lack-of-Informed-Consent Claim in New York Malpractice Actions

1. Introduction

Danziger v Mayer (2025 NY Slip Op 01354 [2d Dept Mar. 12, 2025]) arises from a medical-malpractice lawsuit following an emergency-department discharge that was followed, within about an hour, by a stroke caused by an internal carotid artery dissection and occlusion.

The injured plaintiff, Zalman Danziger, initially presented to his primary care facility, Ezra Medical Center (“Ezra”), reporting a sudden “snap” sensation in the head, headache, facial warmth, and blurred vision in the left eye. He was referred to the emergency department at Lutheran Medical Center (“Lutheran”), evaluated by ER attending Jeffrey David Mayer (and his practice, Jeffrey Mayer, M.D., P.C.; together, the “Mayer defendants”), received an ophthalmology consult by Jonathan Scott Zwerling, and underwent a non-contrast CT head read as negative. He was discharged with ophthalmology follow-up and then suffered a stroke.

The complaint asserted (1) medical malpractice, (2) lack of informed consent, and (3) a derivative loss-of-consortium claim. On appeal from summary-judgment rulings, the Second Department addressed: (i) the parties’ summary-judgment burdens in malpractice, (ii) whether the pleaded “lack of informed consent” theory was legally viable where the gravamen was a failure to timely evaluate/diagnose, (iii) whether the ophthalmology consultant was entitled to dismissal, and (iv) whether Lutheran established it could not be vicariously liable for care rendered in its emergency department.

2. Summary of the Opinion

• Ezra: Summary judgment denied; Ezra failed to meet its prima facie burden eliminating triable issues of malpractice.
• Mayer defendants: Summary judgment denied as to malpractice and loss of consortium due to triable issues raised by plaintiffs’ experts; but summary judgment granted dismissing the lack of informed consent cause of action.
• Lutheran: Summary judgment denied as to malpractice and loss of consortium (including on vicarious-liability grounds), but summary judgment granted dismissing the lack of informed consent cause of action.
• Zwerling: Summary judgment granted dismissing all claims; his limited role as an ophthalmology consultant supported dismissal, and plaintiffs failed to raise a triable issue.

The Appellate Division modified the order to dismiss the second cause of action (lack of informed consent) against the Mayer defendants and Lutheran, and otherwise affirmed (including the dismissal in favor of Zwerling).

3. Analysis

3.1. Precedents Cited

A. Elements of malpractice and summary-judgment framework

The court anchored the malpractice analysis in established two-element doctrine: deviation from accepted practice and proximate cause, citing Mendoza v Maimonides Med. Ctr. and Stewart v New York Hosp. Queens.

For summary judgment, the court reiterated the defendant’s prima facie burden—either no departure or no proximate cause— under Attia v Klebanov, and emphasized that the defendant must address and rebut the plaintiff’s particularized allegations as set forth in the pleadings and bill of particulars, citing Kogan v Bizekis (quoting Sheppard v Brookhaven Mem. Hosp. Ctr.). The court also stressed that conclusory expert submissions are inadequate, citing Martinez v Orange Regional Med. Ctr..

Once the defendant meets its burden, the plaintiff must respond only on those elements established prima facie, with a non-speculative expert opinion engaging the defense showing, citing Guctas v Pessolano and M.T. v Lim. The court further relied on J.P. v Patel for the principle that generalized, unsupported allegations do not defeat summary judgment, and on Williams v Nanda (quoting Feinberg v Feit) and Lowe v Japal to explain why materially conflicting, nonconclusory expert opinions typically create triable issues precluding summary judgment.

B. “Movant fails prima facie → motion denied regardless of opposition”

For Ezra (and later for Lutheran on certain branches), the court applied the strict rule of Winegrad v New York Univ. Med. Ctr.: where the moving defendant fails to establish prima facie entitlement to judgment, the motion must be denied regardless of the sufficiency of the opposition.

In concluding Ezra did not eliminate triable issues, the court cited examples of similar outcomes where defendants failed to meet the initial burden: Hiegel v Orange Regional Med. Ctr., Walker v Jamaica Hosp. Med. Ctr., and Anthony v Freedman.

C. The informed-consent doctrine—and its boundary against “misdiagnosis/delayed treatment” theories

The court stated the elements of lack of informed consent under Public Health Law-informed jurisprudence, citing Cox v Herzog: (1) failure to disclose alternatives and reasonably foreseeable risks a reasonable practitioner would disclose, (2) a reasonably prudent patient would not have undergone the treatment if fully informed, and (3) the lack of informed consent was a proximate cause of the injury.

It then emphasized, via Kelapire v Kale, that the third element means the injury must be proximately caused by “the actual procedure performed for which there was no informed consent.”

Critically, the court invoked Schel v Roth (quoting Etkin v Marcus) to draw the doctrinal line: where the gravamen is that negligence led to a failure to evaluate seriousness such that affirmative treatment was not sought timely, the claim is not one for informed consent. Applying this principle, the court dismissed the informed-consent cause of action as to the Mayer defendants and Lutheran, citing Martin v Hudson Val. Assoc. and Sample v Levada in support of dismissal in comparable circumstances.

D. Limited-role consultants and dismissal

For the ophthalmology consultant, the court relied on Leigh v Kyle to support dismissal where the defendant’s role is limited (here, an ophthalmological consultation to address blurred vision) and the moving papers establish no actionable departure within that scope.

E. Hospital vicarious liability in the emergency-room setting

On Lutheran’s attempt to avoid vicarious liability, the court restated the baseline rule and its exception using Fuessel v Chin (quoting Seiden v Sonstein): a hospital is generally vicariously liable for employees acting within the scope of employment, but not for independent physicians retained by the patient. The exception applies where the patient comes to the ER seeking treatment from the hospital, not a particular doctor.

Citing Vargas v Lee, the court held Lutheran failed to establish prima facie freedom from vicarious liability as a matter of law, so the malpractice and derivative claims against Lutheran survived at this stage (again invoking Winegrad v New York Univ. Med. Ctr. on the consequence of a failed prima facie showing).

3.2. Legal Reasoning

1. Different defendants, different prima facie showings: Ezra’s moving proof did not “eliminate all triable issues” on the pleaded malpractice theories; therefore, its motion failed at step one. By contrast, the Mayer defendants’ experts made a sufficiently specific, nonconclusory showing addressing standard of care and causation, shifting the burden to plaintiffs—who then created triable issues through competing, record-based expert opinions.
2. Informed consent cannot be used as a “failure-to-diagnose” substitute: The court treated the informed-consent count as legally mismatched to the substance of the allegations. The complaint’s thrust was that defendants failed to timely diagnose an impending stroke (and thereby failed to initiate timely treatment), not that the plaintiff underwent a procedure without disclosure of risks/alternatives such that the undisclosed risk materialized. Under Schel v Roth and Etkin v Marcus, such allegations do not state a cognizable informed-consent claim, warranting dismissal as a matter of law.
3. Scope-of-care matters for consultants: Because Zwerling’s involvement was confined to an ophthalmology consultation, his prima facie showing focused on that limited role. With plaintiffs unable to counter with a non-speculative expert opinion tying an actionable departure within his scope to the stroke injury, dismissal followed.
4. ER “apparent agency” style vicarious liability remains a fact-sensitive issue: Lutheran did not conclusively establish that the injured plaintiff sought care from a particular independent physician rather than the hospital’s ER. Without that prima facie showing, summary judgment on vicarious-liability grounds was unavailable.

3.3. Impact

• Pleading discipline for informed consent: The decision reinforces that New York courts will dismiss “lack of informed consent” claims that are, in substance, failure-to-diagnose / failure-to-treat / delayed-treatment allegations. Plaintiffs must tie the theory to a specific “procedure performed” and show that the undisclosed risk of that procedure proximately caused the injury.
• Summary judgment remains expert-driven and allegation-specific: The opinion underscores that defendants must directly rebut the bill of particulars with nonconclusory expert proof, and plaintiffs must respond in kind with record-cited reasoning—not general assertions.
• Hospitals face continuing ER vicarious-liability exposure: Lutheran’s inability to secure dismissal illustrates the ongoing significance of the ER exception: unless the record clearly shows the patient selected and retained an independent physician, hospitals may face trial on vicarious-liability theories for ER care.
• Consultants may obtain early dismissal where their role is narrow: Where a specialist’s involvement is limited (e.g., a discrete consult) and properly supported by expert proof, Danziger signals a path to dismissal—even if broader claims proceed against other providers.

4. Complex Concepts Simplified

Prima facie burden (summary judgment)

The moving party must first present legally sufficient evidence that, if unrebutted, requires judgment in its favor. If it fails, the motion is denied even if the opponent’s papers are weak (the Winegrad v New York Univ. Med. Ctr. rule).

Departure from accepted practice

A proven deviation from what a reasonably competent provider would do under similar circumstances (often established through expert testimony).

Proximate cause

A sufficiently direct causal connection between the departure and the injury; in malpractice cases this usually requires expert explanation.

Lack of informed consent (what it is—and is not)

It concerns insufficient disclosure of risks/alternatives of a treatment/procedure the patient actually underwent, leading to injury from that procedure. It is not a substitute theory for misdiagnosis, failure to evaluate, or delayed treatment.

Respondeat superior and the ER exception

Hospitals are typically liable for employees’ negligence within the scope of employment. They are typically not liable for independent physicians chosen by the patient—but may be liable where the patient comes to the ER seeking care from the hospital, not a particular doctor.

Derivative loss-of-consortium claim

A spouse’s claim for loss of services/companionship that depends on the viability of the injured spouse’s underlying tort claims.

5. Conclusion

Danziger v Mayer delivers a clear doctrinal takeaway: where the core allegation is a failure to timely evaluate and diagnose a condition resulting in delayed treatment, the claim does not support a separate cause of action for lack of informed consent. At the same time, the decision reaffirms rigorous, allegation-specific expert burdens on summary judgment, preserves fact-sensitive ER vicarious-liability exposure for hospitals, and illustrates how limited-role consultants can obtain dismissal when plaintiffs cannot raise a triable, expert-supported issue within the consultant’s scope.