Ellsworth v. Chan

—Judgment affirmed without costs. Memorandum: Supreme, Court properly denied plaintiffs’ motion to set aside the jury verdict as against the weight of the evidence (see, Riggio v New Creation Fellowship, 249 AD2d 942). We further conclude that plaintiffs’ contention that the court erred in giving an “error in judgment” charge is not preserved for our review. Plaintiffs submitted evidence at trial that defendant deviated from acceptable standards of care by cutting the bowel of Michelle M. Ellsworth (plaintiff) while performing a hysterectomy, performing the procedure in light of plaintiffs pelvic adhesion disease, failing to order a presurgical bowel preparation rather than an enema, and continuing the procedure after cutting the bowel. Defendant submitted expert testimony that he did not deviate from the standard of care in the community and that his decisions during the course of plaintiffs treatment were medically acceptable alternatives. An error in judgment charge was warranted with regard to at least some of plaintiffs’ allegations of negligence. The general objection by plaintiffs to that charge is insufficient to preserve for our review their present contention 812 that the charge was not applicable to defendant’s misidentifying and then cutting plaintiffs bowel (see, CPLR 4110-b; Robillard v Robbins, 78 NY2d 1105, 1106). We have reviewed plaintiffs’ remaining contentions and conclude that they are without merit. All concur, except Balio, J., who dissents and votes to reverse in the following Memorandum.