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NEITHER THE “HABIT” NOR THE “ERROR IN JUDGMENT” JURY INSTRUCTION WAS APPROPRIATE IN THIS MEDICAL MALPRACTICE CASE; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the defense verdict in this medical malpractice case and ordering a new trial, determined: (1) the “habit” jury instruction should not have been given; (2) the “error in judgment” jury instruction should not have been given; and (3) plaintiff’s expert cardiologist should have been allowed to testify about the appropriateness of taking plaintiff off the anti-coagulant medication, DAPT. Plaintiff had a heart attack in 2012 and was put on DAPT permanently by his cardiologist to prevent blood clots. In 2014 defendant cardiologist agreed to the defendant gastroenterologist’s request to have plaintiff stop taking DAPT temporarily to allow a colonoscopy procedure. While plaintiff was off the DAPT he had another heart attack:

… [T]he very conduct that is the subject of the [habit] charge in question is the “course of treatment regarding patients they held in common.” In order for a habit charge to be appropriate, the proof must demonstrate “‘a deliberate and repetitive practice by a person in complete control of the circumstances'” … . “On no view . . . can conduct involving not only oneself but particularly other persons . . . produce a regular usage because of the likely variation of the circumstances in which such conduct will be indulged” … . Here, neither defendant had complete control, and both defendants testified that their decisions regarding temporary cessation of DAPT prior to or after a colonoscopy varied depending on the circumstances of each patient. …

An error in judgment charge “is appropriate only in a narrow category of medical malpractice cases in which there is evidence that [the] defendant physician considered and chose among several medically acceptable treatment alternatives” … . “A distinction must therefore be made between an ‘error in judgment’ and a doctor’s failure to exercise his or her best judgment. Giving the ‘error in judgment’ charge without regard for this distinction would otherwise relieve doctors whose conduct would constitute a breach of duty from liability” … . Here, the primary issue at trial was whether defendants deviated from the standard of care in determining to temporarily cease [plaintiff’s] DAPT both before and after his colonoscopy. There was no evidence presented that defendants chose between two or more medically accepted alternatives … . …

Plaintiffs’ cardiology expert established that he had knowledge and expertise in this area and should not have been barred from testifying as to whether [the gatroenterologist’s] decision to temporarily cease DAPT for 14 days after the colonoscopy was a departure from the standard of care … . Michalko v Deluccia, 2020 NY Slip Op 05991, Third Dept 10-22-20

 

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