Plaintiffs commenced their New York medical malpractice action seeking damages for injuries sustained by Eric C. Burns (plaintiff) as the result of the alleged malpractice of defendant Voytek W. Sobieraj, M.D. At trial, plaintiffs’ expert testified that Sobieraj deviated from medically acceptable treatment standards when reviewing a series of X-rays taken of plaintiff’s lungs by failing to identify an abnormality as potentially cancerous. The jury returned a verdict finding that Sobieraj was not negligent. The plaintiffs appealed.
Error In Judgment Charge
The “error in judgment” charge, as articulated in PJI 2:150, paragraph (5), states: “[a] doctor is not liable for an error in judgment if [the doctor] does what (he, she) decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances” (PJI 2:150, ¶ [5]). Absent a showing that “defendant physician considered and chose among several medically acceptable treatment alternatives” the error in judgment charge has been found inappropriate (Martin, 281 AD2d at 866).
The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department stated in its Memorandum and Order entered on April 26, 2026 that an error in judgment jury instruction is appropriate in a case where a doctor is confronted with several alternatives and, in determining appropriate treatment to be rendered, exercises their judgment by following one course of action in lieu of another. However, such an instruction should be given 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.
The New York appellate court held that an error in judgment jury instruction was not warranted in the case it was deciding because there was no evidence introduced at trial that the defendant physician made a choice between or among medically acceptable alternatives. The plaintiffs’ sole theory of the defendant’s alleged malpractice arose from the defendant’s alleged lack of due care in assessing the plaintiff’s condition. The sole issue before the jury was then whether the defendant’s failure to diagnose the plaintiff’s condition constituted a deviation from medically accepted standards of care. Inasmuch as the error in judgment charge in this case created a 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.”
Source Burns v. Sobieraj, M.D., 191 CA 24-01898.
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