You are here: / / IN A MEDICAL MALPRACTICE TRIAL, THE “ERROR IN JUDGMENT” JURY...
, , ,

IN A MEDICAL MALPRACTICE TRIAL, THE “ERROR IN JUDGMENT” JURY INSTRUCTION IS ONLY APPROPRIATE WHERE A PHYSICIAN IS CONFRONTED WITH SEVERAL MEDICALLY ACCEPTABLE TREATMENTS AND CHOOSES ONE; HERE IT WAS ALLEGED DEFENDANT MISREAD AN X-RAY; GIVING THE “ERROR IN JUDGMENT” INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT). ​

The Fourth Department, ordering a new trial in this medical malpractice case, determined the judge should not have given the jury an “error in judgment” jury instruction. The complaint alleged defendant physician failed to notice an abnormality in a lung X-ray. The “error in judgment” instruction is only appropriate when a physician is confronted with several medically acceptable treatments and chooses one, not the case here:

“[A]n error [in] judgment charge is appropriate in a case where a doctor is confronted with several alternatives and, in determining appropriate treatment to be rendered, exercises [their] judgment by following one course of action in lieu of another” … . However, such a charge should be given “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” … . An error in judgment charge is not warranted where, as here, there was no evidence introduced at trial that the defendant physician “made a choice between or among medically acceptable alternatives” … , and the “plaintiffs’ [sole] theory of [the] defendant’s alleged malpractice ar[ose] from [the] defendant’s alleged lack of due care in assessing [the] plaintiff’s condition,” inasmuch as “the [sole] issue before the jury was [then] whether [the] defendant’s failure to diagnose [the] plaintiff’s [condition] constituted a deviation from medically accepted standards of care” … . Inasmuch as the error in judgment charge here “create[d] a risk that [the] jury w[ould] find that, because [Sobieraj] exercised his . . . best judgment, there can be no liability despite a failure to adhere to generally accepted standards of care,” we conclude that the court’s error in giving the charge cannot be deemed harmless … , and plaintiffs are thus entitled to a new trial.  Burns v Sobieraj, 2026 NY Slip Op 02537, Fourth Dept 4-24-26

Practice Point: In a medical malpractice action, the “error in judgment” jury instruction is only appropriate where there evidence of more than one appropriate treatment and the physician chooses one. It was reversible error to give the instruction where it was alleged the defendant misread an X-ray.

 

You might also like
Right to Counsel Did Not Attach When Community Activist Told Police Defendant’s Attorney Was On His Way to the Station
Motion to Vacate Pursuant to CPLR 5015 Should Have Been Granted On “Subject Matter Jurisdiction” and “Fraud Upon the Court” Grounds
THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT). ​
Uninhabited Trailer Met Definition of a “Building” Within the Meaning of the Arson Statute
TWO ATTACKS MINUTES APART CONSTITUTED A SINGLE EVENT IN THIS DOG BITE CASE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF ACTION FOR LEAD-PAINT EXPOSURE ACCRUED, THEREFORE THE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED ON THE GROUND THAT THE STATUTE OF LIMITATIONS HAD EXPIRED (FOURTH DEPT).
Hockey Player Assumed Risk of Having His Bare Foot Stepped on in the Locker Room by a Player Wearing Skates
THE NONDOMICILIARY DID NOT HAVE MINIMUM CONTACTS WITH NEW YORK; NEW YORK DID NOT HAVE PERSONAL JURISDICTION OVER THIS TRUST LITIGATION (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

MOTHER ASKED TO REPRESENT HERSELF IN THIS CUSTODY PROCEEDING AND THEN DEFAULTED;... ONLY THE CHIEF ADMINISTRATOR OF THE COURTS HAS THE POWER TO APPOINT CHIEF CLERKS...