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"Error in Physician Judgment" Jury Instructions Appropriate


A woman underwent an emergency cesarean section. The doctor who performed the procedure ordered and administered a single prophylactic antibiotic. This doctor also provided to the woman pre-and postoperative care. The woman experienced drainage from the surgical incision. A second doctor discharged the woman from the hospital. The woman called the second doctor several hours following the discharge and reported drainage from the surgical incision. The doctor who performed the cesarean section saw the woman at a follow-up visit and ordered no tests or treatment for the woman. Both doctors were employed by the same practice group.

 

The woman suffered from a postsurgical infection.

 

The woman and her husband sued the two doctors and their practice group. The complaint alleged that the woman's postoperative infection was the result of the first doctor's negligence in ordering and administering a single antibiotic prophylaxis for the cesarean section rather than dual antibiotic prophylaxis, and in failing to order appropriate testing and treatment for the woman at a follow-up office visit. The complaint alleged that the second doctor was negligent in discharging the woman without conducting further inquiry into the drainage from the surgical incision, and in failing to direct the woman to go to the emergency room after she reported certain symptoms during the telephone call on the day of discharge.

 

A jury trial was conducted, and the jury returned a verdict finding that neither doctor was negligent. The Onondaga County Supreme Court subsequently granted the couple’s post-trial motion to set aside the verdict insofar as they sought a new trial as to the doctor who performed the cesarean section and the practice group for vicarious liability. The trial court reasoned that it should not have given an error in judgment charge to the jury with respect to the first doctor's alleged malpractice in failing to order and administer dual antibiotic prophylaxis for the cesarean section, and on the alternative ground that the verdict in favor of the first doctor was against the weight of the evidence.

 

The Appellate Division of the New York Supreme Court, Fourth Department, reversed in part and affirmed in part. The court held that the trial court correctly gave the error in judgment charge to the jury with respect to the first doctor and the trial court properly denied the couple’s post-trial motion insofar as it sought an order setting aside the verdict in favor of the second doctor.

 

The trial court correctly gave the error in judgment charge to the jury with respect to the first doctor's alleged malpractice in failing to order and administer dual antibiotic prophylaxis for the cesarean section. The first doctor testified that he exercised his professional judgment in choosing between acceptable alternatives. The defense also proffered expert testimony that ordering and administering a single antibiotic prophylaxis or dual antibiotic prophylaxis were acceptable alternatives. There was evidence that the first doctor considered and chose between medically acceptable treatment alternatives at the postoperative office visit, and thus the charge was also appropriately given with respect to his postoperative care. Also, the preponderance of the evidence in favor of the couple was not so great that the verdict finding that the first doctor was not negligent could not have been reached upon any fair interpretation of the evidence.

 

The trial court properly denied the couple’s post-trial motion insofar as it sought an order setting aside the verdict in favor of the second doctor. The trial court properly gave an error in judgment charge with respect to the second doctor's conduct in discharging the woman and, upon receiving the woman's telephone call, electing to wait and observe her condition rather than undertaking immediate treatment or testing. Also, the verdict in favor of the second doctor was supported by a fair interpretation of the evidence.

 

The Appellate Division of the New York Supreme Court, Fourth Department, reversed the trial court’s grant of the couple’s post-trial motion to set aside the verdict insofar as they sought a new trial as to the doctor who performed the cesarean section and his practice group for vicarious liability, and affirmed the trial court’s denial of the couple’s post-trial motion insofar as it sought an order setting aside the verdict in favor of the second doctor.

 

See: Beebe v. St. Joseph's Hosp. Health Center, 2014 WL 4941985, 2014 N.Y. Slip Op. 06711 (N.Y.A.D. 4 Dept., October 3, 2014) (not designated for publication).

 

 

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