Orphan v. Pilnik, M.D.

Doctor Samuel Pilnik (defendant) operated on Joan Orphan (plaintiff) to remove a suspicious breast lump, leaving Orphan with a 6.5-centimeter scar. Orphan sued Pilnik for medical malpractice. Orphan alleged that Pilnik had failed to get her informed consent before the surgery because he had led her to believe it was just a minor biopsy and had not adequately disclosed the risk of needing to make a larger incision or that Orphan might have significant scarring. Pilnik moved for summary judgment on the informed-consent claim, presenting evidence that he had informed Orphan about all the risks that a reasonable physician would have disclosed for that surgery. Orphan conceded that Pilnik’s evidence eliminated her claim if the facts were undisputed, but she claimed a genuine factual dispute existed. In support of this factual dispute, Orphan submitted (1) her own affidavit and (2) an affidavit from her own medical expert. In Orphan’s affidavit, she stated that if Pilnik had informed her about the risk of that type of scarring, she would have obtained a second opinion about her situation before agreeing to allow more than a biopsy. In the expert’s affidavit, the expert offered criticisms of Pilnik’s disclosures but never stated that Pilnik had failed to disclose all information that a reasonable physician would have disclosed in the same situation. The trial court granted Pilnik’s motion and dismissed the informed-consent claim. The appellate division affirmed the dismissal. Orphan appealed to New York’s highest state court, the Court of Appeals.