4 No. 12
Nancy Nestorowich, &c. as Executrix of the Estate of Walter S.
Nestorowich, Deceased,
Appellant,
v.
John J. Ricotta, M.D.,
Respondent, et al.,
Defendant.
_________________________________________________________________
2002 NY Int. 13
February 14, 2002
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Michael G. Cooper, for appellant.
Ann M. Campbell, for respondent.
Healthcare Association of New York State, et al., amici curiæ.
_________________________________________________________________
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 facts presented the error was harmless.
I.
In 1994, defendant, Dr. John Ricotta, a vascular surgeon, performed an
adrenalectomy on decedent, Walter Nestorowich. This surgery was the
culmination of decedent's decade-long bout with renal cell carcinoma.
Dr. Joseph Greco, not a party to this action, first diagnosed the
cancer in 1983. Shortly thereafter, in an attempt to contain the
disease, Greco removed decedent's right kidney and adrenal gland.
Unfortunately, the cancer persisted and in 1991, a significant portion
of decedent's right lung was removed. The cancer continued to
metastasize and in 1993, Greco discovered a large tumor on decedent's
left adrenal gland.
Interferon treatment proved unavailing, and the tumor grew to
approximately nine inches in length, three times the size of the
SNIPPETS:
The primary issue on this appeal is whether, in a medical malpractice action arising out of a
In 1994, defendant, Dr. John Ricotta, a vascular surgeon, performed an adrenalectomy on
Shortly thereafter, in an attempt to contain the disease, Greco removed decedent's right
Interferon treatment proved unavailing, and the tumor grew to approximately nine inches in
Greco recommended surgery to remove the mass, but decedent feared that the operation would
Defendant performed the left adrenalectomy on April 6,
The tumor was surrounded by an uncertain number of blood vessels and small arteries, all of
defendant realized that he had inadvertently ligated decedent's renal artery thus preventing
Despite the superficial success of both surgeries, the ligation caused irreparable harm to
In 1995, decedent and his spouse commenced this medical malpractice action against defendant
Following an extensive charge conference, and over plaintiff's objection, Supreme Court gave
On plaintiff's appeal, the Appellate Division affirmed, concluding that Supreme Court did not
The prevailing standard of care governing the conduct of medical professionals has been a
The Pike standard demands that a doctor exercise "that reasonable degree of learning and
A doctor is charged with the duty to exercise due care, as measured against the conduct of
The notion of "best judgment" assures conformance with the prevailing standard of care and
It follows, therefore, that a doctor may be liable only if the doctor's treatment decisions
Surgicenter, 281 AD2d 866;
Indeed, neither party contends that ligation of the renal artery is an acceptable alternative
Finally, viewing the charge as a whole, and in light of the evidence presented, counsel's
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