Fourth Department – Medical malpractice: Burns v. Sobieraj

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Medical malpractice — Error in judgment jury charge

Burns v. Sobieraj

CA 24-01898

Appealed from Genesee County Court

Background: The plaintiffs commenced an action alleging medical malpractice. At trial, plaintiffs’ expert testified that the defendant deviated from medically acceptable treatment standards when reviewing a series of lung X-rays by failing to identify an abnormality as potentially cancerous. The jury found the defendant not negligent. The plaintiff appealed arguing that the court improperly gave an error in judgment charge.

Ruling: The Appellate Division reversed. The court held that an error in judgment charge is not warranted when there was no evidence introduced at trial that the defendant physician made a choice between or among medically acceptable alternatives and the plaintiffs’ sole theory of malpractice arose from the defendant’s alleged lack of due care in assessing the plaintiff’s condition. In the present matter, the court’s error resulted in the jury could find that because the defendant exercised his best judgment, there can be no liability despite a failure to adhere to generally accepted standards of care.

Michael S. Porter, of the Porter Law Group, for the plaintiffs-appellants; Rachel E. Miller, of O’Connor, O’Connor, Bresee & First, for the defendants-respondents.

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