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NESTOROWICH v. RICOTTA

97 N.Y.2d 393 (2002)

767 N.E.2d 125

740 N.Y.S.2d 668

NANCY NESTOROWICH, Individually and as Executrix of WALTER S. NESTOROWICH, Deceased, Appellant, v. JOHN J. RICOTTA, Respondent, et al., Defendant.

Court of Appeals of the State of New York.

Decided February 14, 2002.

Attorney(s) appearing for the Case

Michael G. Cooper, Hamburg, for appellant.

Brown & Tarantino, LLP, Buffalo (Ann M. Campbell of counsel), for respondent.

Ward Norris Heller & Reidy LLP, Rochester (Harold A. Kurland and Kathryn K. Lee of counsel), for Healthcare Association of New York State and another, amici curiae.

Chief Judge KAYE and Judges LEVINE, WESLEY, ROSENBLATT and GRAFFEO concur with Judge CIPARICK; Judge SMITH dissents and votes to reverse and order a new trial in a separate opinion.

OPINION OF THE COURT

CIPARICK, J.

The primary issue on this appeal is whether, in a medical malpractice action arising out of a surgical procedure, a trial court may properly give the "error in judgment" charge absent a showing that a doctor has chosen one of two or more medically acceptable alternative treatments or techniques. We hold that Supreme Court erred in giving the charge in this case, but that on the...

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