Monday, August 8, 2016

An "error in judgment" charge.

Practice point:  The Appellate Division determined that a new trial is required because the Supreme Court erred in giving an "error in judgment" charge over the plaintiff's objection. The Appellate Division found that this case does not present a choice between one of two or more medically acceptable alternative treatments or techniques.  The defendant testified that he diagnosed the decedent with a benign non-urgent condition, and he neither suspected cancer nor considered the option of sending the decedent for further diagnostic testing. Thus, the case presented the jury with the straightforward question of whether the defendant deviated from the applicable standard of care in diagnosing the decedent.

Student note:  The 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.

Case:  Lacqua v. Silich, NY Slip Op 05628 (2d Dep't July 27, 2016)

Here is the decision.

Tomorrow's issue: Attorney disqualification based on an alleged conflict of interest.