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.