Nicked Bowel During Colonoscopy: Can You Sue for Lack of Informed Consent in New York?

I had a colonoscopy. The doctor explained the procedure was routine, but there were some possible complications that could occur. Those complications did occur. The doctor had perforated my bowel during the colonoscopy and I needed an emergency bowel resection to save my life. If I had known how devastating the complications could be, I never would have agreed to the procedure. Can I sue for lack of informed consent or medical malpractice?

When a standard medical procedure leads to a catastrophic complication, patients often feel overwhelmed, confused, and wronged.

Under New York law, the answer is often surprising—and frustrating—for injured patients. Experiencing a severe complication does not automatically mean medical malpractice occurred, nor does it guarantee a successful lawsuit for lack of informed consent.

Below is an examination of how New York courts analyze the strict legal hurdles for proving a lack of informed consent, and why signed consent forms play a critical role.

1. Medical Malpractice vs. Known Surgical Risks

To succeed in a traditional medical malpractice lawsuit in New York, an injured plaintiff must prove that the healthcare provider deviated or departed from accepted standards of medical practice, and that this departure proximately caused their injury.

However, in medicine, an adverse outcome does not automatically prove negligence.

Certain medical procedures carry inherent risks that can occur even when the doctor performs the procedure perfectly, adhering strictly to every medical standard. A nicked or perforated bowel during a colonoscopy is a classic example of an inherent, known risk of the procedure. Because the instrument must navigate delicate intestinal tissue, perforation can occur absent any negligence or standard-of-care violation on the part of the physician.

Unless an expert medical witness can demonstrate that the physician handled the scope negligently or used improper force, the mere occurrence of a perforated bowel generally does not support a cause of action for medical malpractice.

2. The Legal Standard for Lack of Informed Consent in New York

When a direct malpractice claim is unavailable due to an inherent risk, patients often look to a secondary cause of action: Lack of Informed Consent.

In New York, claims for lack of informed consent are governed by Public Health Law § 2805-d. Under PHL § 2805-d(1), a lack of informed consent is defined as:

“The failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical… practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.”

To build a viable claim under PHL § 2805-d, a plaintiff must establish three distinct elements:

1. Failure to Disclose: The doctor failed to disclose the reasonably foreseeable risks, benefits, and alternatives that a reasonable practitioner would have disclosed under similar circumstances.
2. Objective Causation: A reasonably prudent person in the patient’s position would have decided not to undergo the procedure if they had been fully informed of those risks and alternatives.
3. Proximate Cause: The unconsented-to procedure was a substantial factor in causing the patient’s injury.

3. The “Dwelling On” Misconception and Written Consent Forms

A central issue in many colonoscopy cases involves what was actually disclosed before the procedure. Patients often argue that while a doctor or consent form mentioned the possibility of a “nicked bowel,” the doctor did not “dwell enough” on how severe, painful, or life-altering the repair process would be.

New York law does not require doctors to provide an exhaustive lecture or elaborate on every potential outcome of a known risk. The law requires the disclosure of reasonably foreseeable risks in a manner that allows a reasonable person to make a knowledgeable decision.

The Weight of a Signed Consent Form

If a patient signs a standard, written informed consent document prior to a colonoscopy, and that form explicitly lists “bowel perforation,” “nicked bowel,” or “bleeding/puncture” as a known risk, New York courts will scrutinize the claim heavily.

While generic, boilerplate consent forms that fail to list specific procedures or risks do not protect a doctor as a matter of law (Parrilla v. Saphire, 149 A.D.3d 856 [2d Dept 2017]), a consent form that explicitly discloses the exact risk that occurred (e.g., bowel perforation) creates a formidable legal barrier for the plaintiff.

A patient’s claim that the doctor “didn’t emphasize the danger enough” rarely satisfies the qualitative insufficiency standard required by law when the written documentation clearly identifies the risk.

4. The Objective “Reasonably Prudent Person” Test

Even if a patient can show that a physician failed to adequately disclose a specific risk or alternative, they face another steep hurdle under PHL § 2805-d(3): the objective test for causation.

When evaluating whether a patient would have declined the procedure had they been fully informed, New York courts do not rely solely on the patient’s subjective, hindsight testimony. Dooley v. Skodnek, 138 A.D.2d 102 (2d Dept 1988).

Would a reasonably prudent person in the patient’s position at the time consent was given have decided not to undergo the procedure if given appropriate information?

In evaluating this objective test, courts and juries weigh the severe risks of forgoing a diagnostic procedure (such as undetected, life-threatening colorectal cancer or polyps) against the relatively low statistical probability of experiencing a bowel perforation. Because a colonoscopy is a critical preventative screening tool, New York courts routinely conclude that a reasonably prudent person, facing the risks of undetected disease, would still consent to the procedure even knowing there is a small risk of a nicked bowel.

5. Mandatory Expert Testimony

Finally, any patient attempting to bring an informed consent claim in New York must meet strict procedural and evidentiary requirements. Under CPLR 4401-a, a judge must dismiss a lack of informed consent claim at the close of the plaintiff’s case if the plaintiff fails to present expert medical testimony establishing the qualitative insufficiency of the consent. See Alberti v. St. John’s Episcopal Hosp., 116 A.D.2d 612 (2d Dept 1986).

To survive dismissal, a medical expert must explicitly testify that:

1. A reasonable gastroenterologist or physician under similar circumstances would have provided additional or different disclosures than what was given.
2. The information actually provided was qualitatively insufficient under accepted medical standards. Gonzalez v. Moscarella, 142 A.D.2d 550 (2d Dept 1988).

If the defense demonstrates that the physician disclosed the risk of perforation, obtaining a qualifying medical expert willing to testify that the disclosure was legally inadequate becomes exceedingly difficult.

Conclusion

Suffering a perforated bowel during a routine colonoscopy is a traumatic, life-altering event. However, New York personal injury and medical malpractice law draws a firm line between actionable medical error and known surgical complications.

Where a physician discloses the risk of bowel perforation—whether verbally or through an explicit written consent form—and where the procedure itself was conducted within acceptable standards of care, New York courts will generally dismiss claims alleging lack of informed consent or malpractice. A doctor’s failure to “dwell” on a disclosed risk does not negate informed consent, nor does an unfortunate outcome transform a known medical risk into legal liability.

By James Santner, Esq.