Can You Sue for Lack of Informed Consent in New York?

You can sue for lack of informed consent in New York when a doctor, dentist, or podiatrist performed a non-emergency treatment or invasive diagnostic procedure without first telling you about the reasonably foreseeable risks, benefits, and alternatives in a way that let you make a real choice.¹ The claim lives under Public Health Law 2805-d and does not require you to show the procedure was done incorrectly. It requires you to show you were denied the information needed to decide for yourself. You have two and a half years from the date of treatment to file, the deadline is strict, and a procedural step called the certificate of merit must be filed with the complaint or shortly after.²

What Counts as Lack of Informed Consent

Public Health Law 2805-d defines the claim as a provider’s failure to disclose the reasonably foreseeable risks, benefits, and alternatives of a proposed treatment such that a reasonable person could evaluate the options.¹ The statute reaches physicians, dentists, and podiatrists. It covers non-emergency treatment, procedures, and surgery, along with diagnostic procedures that physically invade the body. Emergency care is excluded, because the situation does not allow time for a full discussion.

New York uses the “professional standard” of disclosure: the benchmark is what a reasonable practitioner in the same field would have told a patient in the same situation.¹ That is different from states that ask what a reasonable patient would want to know. The practical consequence is that you need expert testimony from a doctor in the same specialty to establish what should have been said. Without that expert, the court can dismiss your case at trial before the jury deliberates.³

A signed form is not the end of the inquiry. In Dries v. Gregor, the patient was told she was having a “biopsy” when the surgeon in fact performed a partial mastectomy, and the surgeon conceded he could not recall ever using the term “quadrant resection” with her. The court treated the matter as negligence rather than assault and battery and held that the patient had to show a reasonably prudent person in her position would have refused the procedure had the information been properly disclosed.⁴ The actual conversation is what matters, not the paperwork alone.

What You Have to Prove

Showing the provider failed to disclose is only the start. Subdivision 3 of the statute requires two additional elements:

A reasonably prudent person in your position, fully informed of the undisclosed risks, would not have gone ahead with the treatment.
The lack of informed consent was a proximate cause of the injury you suffered.

This is an objective test. What you personally would have decided does not control; the question is what a hypothetical reasonable person would have done.¹ If the procedure was the medical consensus for your condition, a jury may conclude a reasonable person would have consented even with full disclosure. And if the risk that was never discussed never materialized, or your injury has no causal link to the gap in information, the claim fails on causation.

Defenses the Provider Can Raise

The same statute gives providers four defenses:

The undisclosed risk was so commonly known that no disclosure was required.
You told the provider you would go through with the procedure regardless of the risks, or that you did not want to be informed.
You were unable to consent and no surrogate decision-maker was reasonably available.
Therapeutic privilege: the provider reasonably believed full disclosure would seriously and substantially worsen your medical condition.

Therapeutic privilege draws the most scrutiny. A nervous patient is not enough; the provider must show a reasonable belief that disclosure itself would cause substantial medical harm.¹

How Long You Have to File

You have two years and six months from the date of the treatment or procedure. If you were in a continuous course of care with the same provider for the same condition, the clock does not start until the last treatment in that course.² This continuous treatment doctrine spares patients from having to interrupt ongoing care to protect a legal claim.

Two narrow exceptions extend the window:

Foreign objects left inside the body: one year from the date you discovered the object, or should have discovered it, whichever is earlier.
Failure to diagnose cancer: two and a half years from the later of the date you knew or should have known of the missed diagnosis and its link to negligence, or the last treatment in a continuous course of care, with an absolute outer limit of seven years from the negligent act.

Courts enforce these deadlines strictly. Missing by a single day will cost you the case regardless of the merits.²

The Certificate of Merit

Under CPLR 3012-a, your attorney must file a certificate of merit with the complaint stating that counsel consulted a licensed physician who reviewed the facts and concluded there is a reasonable basis for the lawsuit.⁵ The requirement screens out frivolous filings before they impose litigation costs on providers.

If the limitations period is about to run and the consultation has not yet happened, the attorney can file a placeholder certificate and then the full one within 90 days after serving the complaint. The same 90-day extension applies when the provider has not yet produced the medical records the consulting physician needs. If three good-faith attempts to find a consulting physician have all been declined, the attorney must disclose that in the filing.⁵ Failing to file the certificate on time can result in dismissal.

What a Case Is Worth

Damages fall into two buckets. Economic damages compensate for measurable financial losses: corrective surgeries, additional treatment, medication, rehabilitation, and lost wages during recovery. Non-economic damages compensate for pain and suffering, emotional distress, and reduced quality of life. New York does not currently cap malpractice damages of either kind, so awards vary widely depending on how severe the harm is. A 2025 bill, S1608, proposed capping non-economic damages at $250,000, but it has not been enacted.⁶

Most patients hire counsel on contingency. Judiciary Law 474-a caps the attorney’s share on a sliding scale:

30% of the first $250,000
25% of the next $250,000
20% of the next $500,000
15% of the next $250,000
10% of anything above $1,250,000

Because the scale drops as the recovery grows, the effective fee on a large award is well below 30% of the total.⁷

How These Cases Play Out

Expert testimony is the spine of the case. Because New York uses the professional standard, you need a physician in the same specialty to testify about what a reasonable practitioner would have disclosed. Go to trial without that testimony and the judge can dismiss at the close of your case before the defense puts on evidence.³

Discovery turns on the medical chart. Contemporaneous notes from the day of the conversation carry heavy weight. A detailed note documenting the specific risks discussed and the patient’s questions is far more persuasive than a provider’s memory years later. A chart that says nothing about risks is strong circumstantial evidence that no meaningful discussion took place.

Defense arguments cluster into a few patterns. The provider will often argue the undisclosed risk was so remote that no reasonable practitioner would have mentioned it. The provider will also attack the reasonable-person element, arguing you would have proceeded with the treatment regardless, especially where the procedure was the clear medical consensus for your condition.¹ When the case reaches a jury, credibility decides it. Patients supported by documentation gaps or by a provider who cannot recall what was discussed tend to do better than those relying on testimony alone.

1
New York State Senate. New York Public Health Law 2805-D – Limitation of Medical, Dental or Podiatric Malpractice Action Based on Lack of Informed Consent
2
New York State Senate. New York Civil Practice Law and Rules 214-A – Action for Medical, Dental or Podiatric Malpractice
3
New York State Senate. New York Civil Practice Law and Rules 4401-A
4
CaseMine. Dries v Gregor
5
New York State Senate. New York Civil Practice Law and Rules 3012-A – Certificate of Merit in Medical, Dental and Podiatric Malpractice Actions
6
New York State Senate. New York State Senate Bill 2025-S1608
7
New York State Senate. New York Judiciary Law 474-A – Contingent Fees for Medical, Dental or Podiatric Malpractice Actions