For over a century following Pike v. Honsinger, the Court of Appeals decision that defined medical malpractice in New York State, the “error in judgment charge” was a standard part of the jury instructions at the conclusion of a medical malpractice trial. In setting forth the legal obligations of a physician to his patient, the Court of Appeals held, in relevant part:
He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge. The law holds him liable for an injury to his patient resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care, or the failure to use his best judgment…. The rule requiring him to use his best judgment does not hold him liable for a mere error of judgment, provided he does what he thinks is best after careful consideration.1
Contemporaneously with the Court of Appeals decision in Nestorowich v. Ricotta,2 Pattern Jury Instruction 2:150 (Malpractice-Physician) was changed to indicate that the error in judgment charge was not to be given unless the trial court determined that it was appropriate. The specific “Caveat 2″ added to the Pattern Jury Instruction at that time states in part:
The fifth paragraph of the charge (“error in judgment”) should not be charged unless there is a showing that defendant considered and chose among several medically acceptable alternatives, Nestorowich v. Ricotta, 97 N.Y.2d 393.3
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