| Vanderpool v Adirondack Neurosurgical Specialists, P.C. |
| 2007 NY Slip Op 09293 [45 AD3d 1477] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| Robert J. Vanderpool et al., Appellants, v AdirondackNeurosurgical Specialists, P.C., et al., Respondents, et al., Defendant. (Appeal No.2.) |
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Martin, Ganotis, Brown, Mould & Currie, P.C., DeWitt (Mark L. Dunn of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered August 30, 2006. The judgment, upon a jury verdict, dismissed the complaint againstdefendants Adirondack Neurosurgical Specialists, P.C. and Walter G. Rusyniak, Jr., M.D.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law without costs, the verdict is set aside, the complaint againstdefendants Adirondack Neurosurgical Specialists, P.C. and Walter G. Rusyniak, Jr., M.D. isreinstated and a new trial is granted against those defendants.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byRobert J. Vanderpool (plaintiff) as the result of the alleged malpractice of, inter alia, Walter G.Rusyniak, Jr., M.D. (defendant). At trial, plaintiffs' experts testified that defendant deviated fromaccepted standards of care by failing to diagnose plaintiff's bilateral pars defect, which wasevident from X rays and an MRI, prior to performing spinal surgery without fusion. Plaintiffs'experts further testified that, as the result of the failure to diagnose the bilateral pars defect,defendant performed a surgical procedure that destabilized plaintiff's spine, causing further injuryand requiring corrective surgery. The jury returned a verdict finding that defendant was notnegligent.
We agree with plaintiffs that Supreme Court erred in giving an "error in judgment" chargeover their objection (see PJI 2:150). "That charge is appropriate only in a narrow categoryof medical malpractice cases in which there is evidence that defendant physician considered andchose among several medically acceptable treatment alternatives" (Martin v Lattimore Rd.Surgicenter, 281 AD2d 866, 866 [2001]; see Spadaccini v Dolan, 63 AD2d 110, 120[1978]), and this case does not fall within that narrow category.[*2]
Plaintiffs' theory of liability against defendant wasthat he failed to adhere to accepted medical standards because he failed to diagnose plaintiff'sbilateral pars defect, which resulted in his failure to consider the necessity for fusion. Althoughdefendant testified that he considered fusion, he did not testify why he did so or that he wasaware of the bilateral pars defect, and his exercise of judgment in treating plaintiff was basedupon an inaccurate diagnosis of plaintiff's condition (see generally Anderson v House of Good Samaritan Hosp., 44 AD3d135, 139-141 [2007]). Because plaintiffs' theory of defendant's alleged malpractice arisesfrom defendant's alleged lack of due care in assessing plaintiff's condition, the issue before thejury was whether defendant's failure to diagnose plaintiff's bilateral pars defect constituted adeviation from medically accepted standards of care. "That being the case, an instruction that thephysician 'is not liable for an error in judgment if [he or she] does what [he or she] decides isbest,' even if accompanied by the 'reasonably prudent doctor' language . . . , createsa risk that a jury will find that, because a physician exercised his or her best judgment, there canbe no liability despite a failure to adhere to generally accepted standards of care" (id. at141; see Nestorowich v Ricotta, 97 NY2d 393, 399-400 [2002]). Contrary to defendant'scontention, we conclude that the error in giving the charge cannot be deemed harmless (seeAnderson, 44 AD3d at 141-142; cf. Nestorowich, 97 NY2d at 400-401). Plaintiffs,therefore, are entitled to a new trial. Present—Scudder, P.J., Gorski, Centra, Fahey andGreen, JJ.