NY appeals court reinstates medical malpractice lawsuit

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A state appeals court has reversed the verdict in a medical malpractice lawsuit and granted a new trial because the judge gave the jury improper instructions.

Plaintiffs Eric C. Burns and Heather S. Burns sued radiologist Dr. Voytek W. Sobieraj, and Associated Radiologists of the Finger Lakes P.C., seeking damages for injuries sustained by Eric C. Burns as the result of the alleged malpractice of Sobieraj.

In October 2024, after a jury trial found Sobieraj not negligent, state Supreme Court Justice Jason L. Cook, in Steuben County, dismissed the complaint.

The plaintiffs appealed to the Appellate Division of state Supreme Court, Fourth Department, which unanimously reversed the verdict, reinstated the complaint, and granted a new trial.

At trial, the plaintiffs’ expert testified that Sobieraj deviated from medically acceptable treatment standards when reviewing a series of X-rays taken of Eric C. Burns’ lungs by failing to identify an abnormality as potentially cancerous.

“We agree with plaintiffs that reversal is required because Supreme Court improperly gave an error in judgment charge,” the court wrote.

An error in judgment charge is appropriate when a doctor has several alternatives and exercises their judgment by following one course of action in lieu of another.

But the error in judgment charge is used only in a narrow category of medical malpractice cases where there is evidence that the physician considered and chose among several medically acceptable treatment alternatives.

The Fourth Department ruled that an error in judgment charge was not appropriate because there was no evidence introduced at trial that Sobieraj made a choice between medically acceptable alternatives.

The plaintiffs’ sole theory of the alleged malpractice stems from Sobieraj’s alleged failure to properly assess Eric C. Burns’ condition. The sole issue before the jury was whether Sobieraj’s failure to diagnose the condition was a deviation from medically accepted standards of care.

The error in judgment jury instruction is only appropriate where a physician is confronted with several medically acceptable treatments and chooses one.

The error in judgment charge here created the risk that the jury would find that, because Sobieraj exercised his best judgment, there can be no liability despite a failure to adhere to generally accepted standards of care.

“We conclude that the court’s error in giving the charge cannot be deemed harmless, and plaintiffs are thus entitled to a new trial,” the court wrote.

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