Martin v. Lattimore Road Surgicenter, Inc.

—Judgment reversed on the law with costs and new trial granted. Memorandum: Supreme Court erred in giving an “error in judgment” charge over plaintiffs’ 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 [2001]; see also, Grasso v Capella, 260 AD2d 600, 601). This case does not fall into that narrow category. At trial, plaintiffs presented evidence that David L. Gandell, M.D. (defendant) deviated from acceptable standards of care in performing a surgical procedure on Valerie Martin (plaintiff) and in failing to properly diagnose and treat plaintiffs postoperative bowel obstruction. With respect to the surgical procedure, plaintiffs’ expert testified that the standard of care required that a stitch be placed at the fascia, the base of the cylindrical incision wound, in order to prevent the bowel from being drawn into the wound. Defendant’s expert testified 867 that the standard of care simply required a stitch at the skin. Defendant chose neither alternative, but instead placed a stitch at skin level and an additional stitch one third of the way into the wound. Neither defendant nor the expert testified that it would have been medically acceptable to stitch the fascia or the skin. Nor did defendant testify that he considered either of those alternatives or any other medically acceptable treatment options before choosing the manner in which to stitch the incision. “The ‘error of judgment’ charge implies the exercise of some judgment in choosing from among two or more available alternatives” (Spadaccini v Dolan, 63 AD2d 110, 120). In this case, however, the evidence simply raised the issue whether defendant deviated from the degree of care that a reasonable physician would have exercised under the same circumstances, and there was no reason to give an error in judgment charge with respect to defendant’s manner of stitching the incision (see, Spadaccini v Dolan, supra, at 120-121). With respect to plaintiffs postoperative care, plaintiffs’ expert testified that defendant deviated from the standard of care by failing to obtain an X ray after plaintiff exhibited classic symptoms of a bowel obstruction. Defendant testified that he would have ordered an X ray if he had suspected a bowel obstruction, but he did not attribute plaintiffs symptoms to a bowel obstruction. Defendant’s expert testified that defendant’s assessment that plaintiff did not have a bowel obstruction was reasonable. No reasonable view of the evidence would support a finding that defendant considered and chose among medically acceptable alternative courses of treatment (cf., Brault v Kenmore Mercy Hosp., 142 AD2d 945, 946). Rather, the evidence simply raised the issue whether defendant deviated from the standard of care in responding to plaintiffs postoperative symptoms. Under those circumstances, “defendant was not required to exercise the type of medical judgment which would warrant the giving of the ‘error of judgment’ charge” (Grasso v Capella, supra, at 601). Pigott, Jr., P. J., Green and Hurlbutt, JJ., concur; Kehoe, J., dissents and votes to affirm in the following Memorandum: