Nestorowich v. Ricotta

Summary

The New York Court of Appeals held that an “error in judgment” jury instruction in a medical malpractice case is appropriate only when the evidence shows that the physician chose among two or more medically acceptable treatment alternatives or techniques. The instruction was improper here because the alleged negligence involved the inadvertent ligation of the patient’s renal artery, but the error was deemed harmless under the circumstances. The court affirmed the Appellate Division’s order affirming judgment for the defendant.

Holdings

1. An error-in-judgment charge is proper only when the evidence shows that the physician considered and chose among two or more medically acceptable treatment alternatives, techniques, or diagnoses. Because the inadvertent ligation of the renal artery was alleged to be purely mechanical negligence and was not an acceptable treatment alternative, the charge was improper.
2. The improper error-in-judgment charge was harmless and did not require reversal because, viewing the charge as a whole and considering the evidence and arguments, the instruction did not prejudice a substantial right or deprive plaintiff of a fair trial.
3. The plaintiff's challenge to the defense expert's testimony as speculative and inadmissible was without merit.

Questions Presented

1. Whether a trial court may give an error-in-judgment charge in a medical malpractice case absent evidence that the physician chose among two or more medically acceptable treatment alternatives or techniques.
2. Whether giving the improper error-in-judgment charge required reversal of the defense verdict under the circumstances.
3. Whether the defense expert's testimony was speculative and inadmissible.

Disposition

affirmed