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Nestorowich v. Ricotta3/21/2001
dless of whether that charge was given, the jury was required to determine whether defendant was negligent in ligating the renal artery while ligating blood vessels.
All concur except Pigott, Jr., P. J., and Wisner, J., who dissent and vote to reverse in the following Memorandum: We respectfully dissent, and vote to reverse and grant plaintiff a new trial. In our view, Supreme Court erred in giving an "error in judgment" charge over 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 (see, 1A NY PJI 3d 701, Caveat 2; see also, Grasso v Capella, 260 AD2d 600, 601)" (Martin v Lattimore Rd. Surgicenter, ___ AD2d ___ [decided herewith]). This case does not fall within that narrow category.
"The 'error judgment' charge implies the exercise of some judgment in choosing from among two or more available alternatives" (Spadaccini v Dolan, 63 AD2d 110, 120-121; see, Martin v Lattimore Rd. Surgicenter, supra). In this case, however, the evidence simply raised the issue whether defendant deviated from the degree of care that a reasonably prudent physician would have exercised under the same circumstances, and therefore an "error in judgment" charge with respect to the manner in which defendant performed the surgical procedure was improper (see, Martin v Lattimore Rd. Surgicenter, supra). In addition, on the facts of this case, we cannot agree with the majority that giving the "error in judgment" charge was harmless error.
(Filed Mar. 21, 2001.)
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