Independent Knowledge of Alternatives Defeats Causation in Informed Consent: Kormusis v. Goldenberg (2025)

Introduction

In Kormusis v. Goldenberg (2025 NY Slip Op 04462), the Appellate Division, Second Department, affirmed summary judgment for a treating dentist and his affiliated practice in a dental malpractice and lack of informed consent suit. The plaintiff, Magdelena Kormusis, underwent a same-day tooth extraction and dental implant despite having received a second opinion recommending a staged approach (extraction followed by several months of healing before implant placement). When the implant later failed and was removed, she sued both the treating dentist, Dr. Joel Goldenberg, and National Dental, PLLC, the practice entity.

The decision both reinforces settled New York summary judgment standards in professional negligence cases and crystallizes an important causation principle in informed consent litigation: where the patient had independent, pre-procedure knowledge of a viable alternative from a separate provider and proceeded anyway, any alleged defect in the treating provider’s disclosure cannot, without more, constitute a proximate cause of the injury. The ruling offers a pragmatic blueprint for defending dental implant cases and clarifies the evidentiary rigor expected of expert submissions in opposition to summary judgment.

Case Background and Parties

Parties: Plaintiff-Appellant: Magdelena Kormusis. Defendants-Respondents: Dr. Joel Goldenberg (treating dentist) and National Dental, PLLC (practice owner).
Clinical timeline:
- March 26, 2018: Dr. Goldenberg examined plaintiff for a loose tooth; he recommended same-day extraction and implant placement.
- Between March 26 and March 30, 2018: Plaintiff obtained a second opinion at another practice recommending extraction followed by a healing period before implant placement.
- March 30, 2018: Plaintiff elected to follow Dr. Goldenberg’s same-day extraction/implant plan.
- June 23, 2018: A dentist employed by National Dental observed an infection and apparent implant failure; the implant was later removed.
Claims: Dental malpractice (negligent care and failure to timely detect infection) and lack of informed consent.
Procedural posture: The Supreme Court, Queens County, granted separate summary judgment motions in favor of Dr. Goldenberg (order entered January 4, 2024) and National Dental (order entered January 5, 2024; judgment entered January 11, 2024). The Appellate Division affirmed and awarded one bill of costs to defendants. The court also treated the notice of appeal from the January 5 order as a premature but valid notice of appeal from the ensuing judgment under CPLR 5520(c).

Summary of the Judgment

The Appellate Division affirmed summary judgment dismissing the complaint against both defendants. On the malpractice claim, defendants’ expert affirmations established prima facie that there was no departure from accepted dental practice and, in any event, no proximate causation of plaintiff’s injuries. Plaintiff’s opposing expert affirmation was deemed speculative, conclusory, and predicated on facts not supported by the record, thus failing to raise a triable issue.

On the lack of informed consent claim, detailed written consent forms and deposition testimony (including the plaintiff’s actual receipt of a contrary second opinion) established, prima facie, that any alleged disclosure deficiency could not have been a proximate cause of the injury. Plaintiff again failed to raise a triable issue in opposition. The result: the complaint was dismissed in its entirety as to both Dr. Goldenberg and National Dental, PLLC.

Detailed Analysis

1) Precedents Cited and Their Influence

Turetsky v Shumantov, 222 AD3d 906 and Kozlowski v Oana, 102 AD3d 751: Reiterate the core elements of dental/medical malpractice in New York—(a) a deviation from accepted practice and (b) proximate causation of injury. These cases set the framework that a defendant moving for summary judgment may prevail by negating either element.
Nelson v Lighter, 179 AD3d 933 and Koi Hou Chan v Yeung, 66 AD3d 642: Emphasize a defendant’s burden to address specific malpractice allegations as pleaded (often through the bill of particulars) and underscore that a plaintiff’s expert must respond with non-conclusory, record-tethered analysis.
Cujcuj v Jayadevan, 218 AD3d 436 and Many v Lossef, 190 AD3d 721: Recognize that conflicting competent expert opinions typically preclude summary judgment; however, that principle is inapplicable if the nonmovant’s expert submission is conclusory or speculative.
Kelapire v Kale, 189 AD3d 1197 and Alvarez v Prospect Hosp., 68 NY2d 320: Foundational authorities on the insufficiency of conclusory allegations in opposing summary judgment, and the general summary judgment standard (Alvarez) requiring competent, evidentiary proof.
Schmidt v Bangiyev, 210 AD3d 924 and Tsitrin v New York Community Hosp., 154 AD3d 994: Specify that expert opinions must address the movant’s assertions with reasoning anchored in the record to avoid being deemed speculative.
Ciceron v Gulmatico, 220 AD3d 732, Cox v Herzog, 192 AD3d 757, and Gilmore v Mihail, 174 AD3d 686: Restate the statutory elements and proof requirements for lack of informed consent claims under Public Health Law § 2805-d (commonly applied to dental practitioners as well).
Xiao Yan Ye v Din Lam, 191 AD3d 827 and Schussheim v Barazani, 136 AD3d 787: Clarify that a signed consent form alone is not automatically dispositive; detailed content and additional evidence (including testimony) matter.
Mattocks v Ellant, 231 AD3d 813 and Pirri-Logan v Pearl, 192 AD3d 1149: Explain three distinct routes for a defendant to win summary judgment on informed consent—(i) show detailed disclosures of risks/alternatives, (ii) show a reasonably prudent person would have consented anyway, or (iii) show lack-of-consent was not a proximate cause.
Spano v Bertocci, 299 AD2d 335: Supports the proximate cause analysis—establishing that, where injury would have occurred regardless or where the patient was adequately aware of risks/alternatives, informed-consent causation fails.
Zapata v Buitriago, 107 AD3d 977 and Garcia v Richer, 132 AD3d 809: Illustrate appropriate uses of expert proof to secure dismissal and the insufficiency of speculative opposition.

Collectively, these precedents reinforce the court’s insistence on rigorous, record-based expert submissions and highlight multiple avenues by which defendants can negate the causation element of an informed consent claim. Kormusis synthesizes these strands in a dental implant context featuring a contemporaneous independent second opinion advising an alternative treatment plan.

2) The Court’s Legal Reasoning

a) Malpractice Claim

Prima facie showing: Each defendant presented expert affirmations grounded in a review of the dental records, pleadings, and deposition transcripts, opining that there was no departure from accepted standards, and that even if a departure were assumed, it was not a proximate cause of the plaintiff’s injuries.
Opposition insufficient: Plaintiff’s expert affirmation was found “speculative, conclusory, and assum[ing] facts not supported by the evidence.” That failure was decisive. Without a competent, record-tethered expert rebuttal addressing the specific departures alleged, the usual “battle of the experts” that would preclude summary judgment never materialized.

b) Lack of Informed Consent

Elements applied: The court applied the three-part test: (1) inadequate disclosure of risks/alternatives; (2) reasonable patient standard (a reasonably prudent person in plaintiff’s position would have declined if fully informed); and (3) proximate cause (the lack of disclosure caused the injury).
Defendants’ proof: Defendants submitted detailed consent forms signed by the plaintiff and deposition testimony from both the plaintiff and Dr. Goldenberg. Crucially, the record reflected that plaintiff had independently obtained a second opinion recommending an alternative approach—healing before implant—yet chose to proceed with the same-day implant.
Causation defeated: In light of the independent second opinion and signed, detailed consent documentation, the court held that any alleged disclosure deficiency by the treating dentist could not be the proximate cause of the injury. This aligns with the principle that causation is lacking where the patient already knew of alternatives or would have undergone the treatment anyway.
Result: Plaintiff failed to raise a triable issue of fact in response. Summary judgment was therefore proper on the informed consent claim.

3) The Decision’s Core Clarification

The decision underscores and operationalizes a key causation limitation in informed consent claims: when a patient enters a procedure with actual, independent knowledge of a reasonable alternative (here, a staged implant protocol advised by another provider), any alleged deficiency in the treating provider’s disclosure is unlikely to be a proximate cause of the adverse outcome. The court’s reliance on detailed consent forms plus deposition testimony, combined with the factual context of the second opinion, provides defendants with a robust template for disproving causation on informed consent.

4) Impact and Practical Implications

For defendants (dentists and practice entities):
- Preserve and present detailed consent forms and corroborating testimony; ensure consent forms discuss alternatives and foreseeable risks specific to the procedure (e.g., infection, implant failure).
- Document the patient’s prior consultations or second opinions when known—such evidence can be dispositive on informed consent causation.
- Expert affirmations must be record-driven, addressing each allegation in the bill of particulars and explaining why any alleged deviation either did not occur or did not cause the injury.
For plaintiffs:
- Opposing experts must respond with specificity to the defense experts’ assertions, cite to concrete record evidence, and avoid assumptions contrary to the record.
- To sustain informed consent claims, plaintiffs must show both disclosure deficiencies and a plausible causal chain—i.e., that a reasonably prudent patient would have declined if fully informed and that lack of disclosure, not treatment choice in light of independent knowledge, led to the injury.
- Where a second opinion was obtained recommending an alternative, plaintiffs should be prepared to explain why, despite that knowledge, the treating provider’s disclosure failures remained causally significant.
For trial courts:
- The decision supports rigorous gatekeeping at summary judgment, especially where the plaintiff’s expert lacks citation to the record or relies on speculative assumptions.
- It illustrates one clean path to disposing of informed consent claims by focusing on proximate causation, rather than solely on the sufficiency of disclosures.
Substantive law development: While anchored in existing precedent, Kormusis sharpens the causation analysis in informed consent litigation by elevating the significance of independently acquired knowledge of alternatives. Expect more focus on pre-procedure second opinions and documented patient awareness in future motions.

Complex Concepts Simplified

Summary Judgment: A pre-trial ruling that decides a case (or a claim) when there is no genuine dispute about important facts and the moving party is entitled to win under the law.
Prima Facie Showing: An initial presentation of evidence sufficient to prove a claim or defense unless contradicted—here, usually via a detailed expert affirmation addressing both standard of care and causation.
Departure from Accepted Practice: A deviation from what competent practitioners ordinarily do under similar circumstances.
Proximate Cause: A legally sufficient causal connection between the defendant’s conduct and the plaintiff’s injury. In medical/dental cases, even if there’s a departure, the plaintiff must show the departure caused the injury.
Informed Consent (Public Health Law § 2805-d framework):
- (1) Failure to disclose reasonable risks and alternatives;
- (2) A reasonably prudent patient would have declined if fully informed; and
- (3) The lack of disclosure caused the injury.
Speculative/Conclusory Expert Opinion: An expert’s statement that is not tied to concrete evidence in the record or that simply asserts a conclusion without explaining how the data supports it. Such opinions cannot defeat summary judgment.
CPLR 5520(c) (Premature Notice of Appeal): Allows a court to treat a notice of appeal from an order as a valid notice of appeal from the subsequently entered judgment, preventing dismissal on a technicality.
Bill of Particulars: A detailed statement of the plaintiff’s claims and alleged departures that the defense must directly address in moving for summary judgment.
Affirmation: A sworn statement by an expert (often in lieu of a notarized affidavit in New York) used to present opinion evidence on summary judgment.

Additional Observations

Entity Liability: The court affirmed dismissal as to National Dental without reaching nuanced issues of vicarious liability or ostensible agency because the merits failed as to both negligence and informed consent. Where the underlying claims fail, employer/owner liability typically falls away.
Dental Implant Context: The case is instructive in immediate (same-day) versus delayed implant protocols. It signals that the mere choice of an established, accepted protocol (immediate placement) over another accepted protocol (delayed placement) will not, without more, imply a departure from accepted practice.

Practice Pointers

Defense counsel should:
- Submit granular, record-cited expert opinions addressing each alleged departure and causation.
- Include the consent form(s) and deposition testimony contextualizing risks and alternatives discussed.
- Highlight any independent sources of the patient’s knowledge (e.g., second opinions) to defeat informed consent causation.
Plaintiff’s counsel should:
- Ensure the expert counters each defense point with specific citations to records (e.g., radiographs, periodontal charts, operative notes).
- Articulate a clear causal narrative explaining how deficient disclosure, as opposed to the chosen (known) alternative, led to the injury.
- When a second opinion was obtained, be prepared to distinguish it (e.g., differences in timing, clinical findings, or risk profile) to preserve causation.

Conclusion

Kormusis v. Goldenberg affirms two powerful themes in New York dental malpractice jurisprudence. First, competent, record-grounded expert submissions are indispensable at summary judgment; conclusory or speculative opinions will not suffice to create a triable issue. Second, the decision refines informed consent causation: where the patient had actual, independent knowledge of a reasonable alternative from another provider and proceeded nonetheless—especially after signing detailed consent forms—any alleged defect in the treating provider’s disclosures will generally not be a proximate cause of the injury.

In the broader legal context, the ruling promotes evidentiary discipline in professional negligence litigation and provides a clear, defendant-friendly path to summary judgment on informed consent claims when independent patient knowledge is documented. It is likely to influence how dental and medical defendants structure consent processes, document discussions of alternatives, and assemble summary judgment records, as well as how plaintiffs frame expert opposition to avoid dismissal.