The Second Department, reversing the defense verdict, determined the trial court should not have given the jury the “error in judgment” charge in this medical malpractice action. Plaintiff alleged defendant negligently diagnosed a lump as benign without any further diagnostic tests. The “error in judgment” theory does not apply in that circumstance:
… Supreme Court erred in giving an “error in judgment” charge (PJI 2:150 ¶ 5) over the plaintiff’s objection. “That charge is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives” … . Contrary to the defendant’s contention, this case does not present a choice between one of two or more medically acceptable alternative treatments or techniques … . Rather, the defendant testified that he diagnosed the decedent, in January of 2002, with a benign condition “that was not urgent,” and he neither suspected cancer nor considered the option of sending the decedent for further diagnostic testing. Thus, the case presented the jury with the straightforward question of whether the defendant deviated from the applicable standard of care in diagnosing the decedent with a benign condition in January of 2002, and the “error in judgment” charge was not warranted … . Lacqua v Silich, 2016 NY Slip Op 05628, 2nd Dept 7-27-16
NEGLIGENCE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/MEDICAL MAPRACTICE ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/JURY CHARGE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/ERROR IN JUDGMENT CHARGE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)