| Rospierski v Haar |
| 2009 NY Slip Op 00898 [59 AD3d 1048] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Leonard Rospierski, Appellant, v Jean G. Haar, D.D.S., M.D. et al.,Respondents. |
—[*1] Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Daniel T. Roach of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredAugust 2, 2007 in a medical malpractice action. The judgment, upon a jury verdict, dismissed thecomplaint.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs, the complaint is reinstated, and a new trial is granted.
Memorandum: Plaintiff commenced this action seeking damages for injuries sustained as theresult of the alleged malpractice of Jean G. Haar, D.D.S., M.D. (defendant). At trial, plaintiff'sexpert testified that defendant deviated from medically acceptable treatment standards in failingto refer plaintiff for radiation therapy after defendant performed surgery to remove a canceroustumor. The jury returned a verdict finding that defendant was not negligent. We agree withplaintiff that reversal is required based on the fact that Supreme Court improperly gave an errorin judgment charge (see PJI 2:150). "That charge is appropriate only in a narrowcategory of medical malpractice cases in which there is evidence that defendant physicianconsidered and chose among several medically acceptable treatment alternatives" (Martin vLattimore Rd. Surgicenter, 281 AD2d 866, 866 [2001]; see Spadaccini v Dolan, 63AD2d 110, 120 [1978]), and this case does not fall within that narrow category.
As noted, in accordance with plaintiff's theory of liability at trial, plaintiff's expert testifiedthat defendant failed to adhere to medically acceptable treatment standards because he failed torefer plaintiff for radiation therapy. Neither defendant nor his expert testified that radiationtherapy was a medically acceptable treatment alternative for plaintiff. Rather, they testified that,given plaintiff's condition, radiation therapy would not have been appropriate. Thus, there wasno evidence that defendant "made a choice between or among medically acceptable alternatives"(Anderson v House of Good SamaritanHosp., 44 AD3d 135, 140 [2007]; see Nestorowich v Ricotta, 97 NY2d 393,400 [2002]), and an error in judgment charge therefore was inappropriate. Instead, the evidencesimply raised the issue whether the standard of care of a reasonably prudent physician requireddefendant to refer plaintiff for [*2]radiation, given plaintiff'scondition (see Nestorowich, 97 NY2d at 400). Because the court's error in giving thecharge in question cannot be deemed harmless (see Anderson, 44 AD3d at 141-142;cf. Nestorowich, 97 NY2d at 401), plaintiff is entitled to a new trial.Present—Hurlbutt, J.P., Martoche, Smith, Peradotto and Green, JJ.