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Spano v. Bertocci11/4/2002
ant while taking Depakote, and the other told her that it would not be safe to do so because it posed a risk of birth defects. Since the mother already knew that there was a danger of birth defects if she became pregnant while taking Depakote, "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational" fact-finders to conclude that Dr. Baldinger's failure to inform her of the dangers of becoming pregnant while taking Depakote was a proximate cause of the injury (Cohen v. Hallmark Cards, supra at 499).
The mother may not rely on her claim that Dr. Baldinger allegedly told her that it was safe to become pregnant while taking Depakote as long as she took folic acid, thereby "negating" her prior knowledge of the dangers posed by Depakote. The trial court expressly ruled that the plaintiffs could not present this claim as part of their causes of action based on lack of informed consent because it had not been sufficiently pleaded. In any event, this claim, presented as part of the plaintiffs' other malpractice causes of action, was rejected by the jury.
Finally, we note that on the instant appeal, the plaintiffs contend that certain alleged errors by the trial court warrant a new trial. Since no final judgment has been entered in this action, these issues are not brought up for review on the plaintiffs' appeal from the order deciding the posttrial motion and cross motion (cf. CPLR 5501 ).
O'BRIEN, J.P., FRIEDMANN, SCHMIDT and TOWNES, JJ., concur.
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