New York Appellate Court Overturns Medical Malpractice Verdict Due To Inappropriate Habit Instruction

The New York Appellate Division, Third Department (“New York Appellate Court”), in its decision entered on October 22, 2020, overturned a New York medical malpractice jury’s defense verdict because the trial court inappropriately provided the jury with the habit instruction. The charge on habit delivered by the court to the jury read, in pertinent part, that “defendants have introduced evidence to show that it was their habit regarding their course of treatment regarding patients they held in common . . . being on [DAPT].”

Evidence of habit may be charged if it involves a repetitive pattern of conduct that is predictable and predictive, to allow an inference of the repetition of said conduct. Habit may be charged in a medical malpractice action if the practice or procedure does not vary from patient to patient depending on the particular medical circumstances or physical condition of the patient.

The Underlying Facts

Plaintiff Anthony J. Michalko (“Michalko”) suffered a heart attack in 2007, which required the insertion of a stent into his left anterior descending artery. Following this procedure, Michalko was placed on dual-antiplatelet therapy (“DAPT”), a therapy that consists of taking the anticoagulant Plavix and a daily aspirin, in an effort to reduce the likelihood of blood clots. In 2012, Michalko suffered a second heart attack that required the artery to be re-stented. Thereafter, Michalko’s cardiologist, defendant William A. DeLuccia (“DeLuccia”) advised Michalko to remain on DAPT indefinitely.

In 2014, Michalko was referred by his primary care physician to a gastroenterologist, defendant Bruno R. Mazza (“Mazza”), for an elective colonoscopy. During Michalko’s preoperative consultation, Mazza’s physician assistant advised Michalko that Mazza wanted him to cease his DAPT seven days before the colonoscopy and instructed him to seek approval from DeLuccia before doing so. Michalko’s spouse communicated with DeLuccia’s nurse to obtain DeLuccia’s approval, which he provided. As instructed, Michalko ceased DAPT. During the colonoscopy on May 5, 2014, Mazza removed two polyps — one small and one large. He informed Michalko that due to the size of one of the polyps, he was concerned about possible bleeding and directed him to continue refraining from DAPT for the next 14 days; Michalko did so. Five days later, Michalko suffered a third heart attack.

Michalko and his wife filed their New York medical malpractice action alleging that the defendants were negligent. Specifically, they claimed that DeLuccia was negligent in approving cessation of Michalko’s DAPT for the seven days prior to the procedure and that both defendants were negligent in not directly consulting with each other prior to this decision. Plaintiffs further alleged that Mazza was negligent in instructing Michalko to remain off DAPT for 14 days after the procedure, and in his failure to discuss the discontinuation of DAPT with DeLuccia prior to its cessation. The case proceeded to trial, and the jury returned a verdict in the defendants’ favor.

New York Appellate Court Opinion

Habit Instruction

The New York Appellate Court held: “We agree with plaintiffs’ contention that habit is appropriately charged only when an inference is necessary “to fill in evidentiary gaps” … Here, no such gap exists. It is undisputed that, with respect to the directive that Michalko cease DAPT seven days prior to the surgery, DeLuccia was informed and agreed to same. As to the postsurgical directive, Mazza testified that he did not consult DeLuccia, but rather made a unilateral determination that Michalko should remain off DAPT for an additional 14 days. Moreover, the very conduct that is the subject of the charge in question is the “course of treatment regarding patients they held in common.” In order for a habit charge to be appropriate, the proof must demonstrate “‘a deliberate and repetitive practice by a person in complete control of the circumstances'” … “On no view . . . can conduct involving not only oneself but particularly other persons . . . produce a regular usage because of the likely variation of the circumstances in which such conduct will be indulged” … Here, neither defendant had complete control, and both defendants testified that their decisions regarding temporary cessation of DAPT prior to or after a colonoscopy varied depending on the circumstances of each patient. Considering the foregoing, we find that Supreme Court erred in charging the jury with habit.”

Error In Judgment Instruction 

The New York Appellate Court further held: “An error in judgment charge “is appropriate only in a narrow category of medical malpractice cases in which there is evidence that [the] defendant physician considered and chose among several medically acceptable treatment alternatives” … “A distinction must therefore be made between an ‘error in judgment’ and a doctor’s failure to exercise his or her best judgment. Giving the ‘error in judgment’ charge without regard for this distinction would otherwise relieve doctors whose conduct would constitute a breach of duty from liability” … Here, the primary issue at trial was whether defendants deviated from the standard of care in determining to temporarily cease Michalko’s DAPT both before and after his colonoscopy. There was no evidence presented that defendants chose between two or more medically accepted alternatives …  Rather, the issue was whether to continue or to stop the same treatment. An interpretation of the rule so as to categorize cessation or continuance of the same treatment as a choice “between or among medically acceptable alternatives” contemplated under Nestorowich would expand the application of the charge and “would transform it from a protection against second-guessing of genuine exercises of professional judgment in treatment or diagnosis into a cloak for professional misfeasance” … We find, therefore, that Supreme Court also erred in giving the error in judgment charge.”

Source Michalko v. DeLuccia, 2020 NY Slip Op 05991.

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