A motion for judgment at the end of the plaintiff’s case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent if the plaintiff has failed to adduce expert medical testimony in support of the alleged qualitative insufficiency of the consent.
§ 4401-a.Motion for judgment
Article 44. Trial Motions · Last amended 1975 · Last verified July 21, 2026
In one sentenceIn a medical malpractice case built solely on lack of informed consent, CPLR 4401-a forces the court to grant judgment for the defendant at the close of the plaintiff's case if no expert medical testimony backed up the claim that the consent was inadequate.
Full Text of CPLR 4401-a
Plain-English Summary
CPLR 4401-a narrows the discretion a court would otherwise have on a CPLR 4401 motion, for one specific type of claim. Where a medical malpractice case rests entirely on a lack of informed consent, not on any other theory of negligence, the plaintiff needs expert medical testimony to show the consent obtained was qualitatively insufficient.
If that expert testimony is missing when the plaintiff rests, the statute does not leave the outcome to the court's judgment call: it requires the court to grant the defense motion for judgment. That reflects the reality that whether a given disclosure met the professional standard for informed consent is not something a lay jury, or a judge, can assess without expert guidance.
Frequently Asked Questions
Do I need an expert witness to prove a lack of informed consent claim in New York?
Yes. CPLR 4401-a requires expert medical testimony on the qualitative insufficiency of the consent in a malpractice case based solely on that theory.
What happens if I don't have an expert on informed consent when I rest my case?
The court must grant the defendant's motion for judgment at the end of the plaintiff's case under CPLR 4401-a.
Does CPLR 4401-a apply to every medical malpractice claim?
No, only to a cause of action for medical malpractice based solely on lack of informed consent; claims resting on other grounds are unaffected.
Is the court's dismissal under CPLR 4401-a discretionary?
No. Unlike an ordinary CPLR 4401 motion, CPLR 4401-a requires the court to grant judgment once the expert-testimony gap is established.
What exactly must the expert testimony show under CPLR 4401-a?
The expert medical testimony must support the alleged qualitative insufficiency of the consent that was obtained, not merely that no consent form was ever signed.
Amendment History
Add, L 1975, ch 109, § 9, eff July 1, 1975.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: informed consent expert testimony New Yorkmedical malpractice directed verdict New Yorklack of informed consent motion for judgmentinformed consent expert witness requirement