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Another Voice: State law does not permit malpractice awards in the way recent critic contends

By John M. Curran

In the Another Voice column published on July 27, a local physician wrote about a “recent (questionable) malpractice verdict.”

I preside over the majority of medical malpractice trials in Erie County. I also served as the judge in the jury trial that was the column’s subject. I am ethically prohibited from any extra-judicial comment about that trial, and cannot address it. However, his comments about the law and juries require a response.

The writer states that: “We live in a country where a suboptimal outcome has become synonymous with malpractice.” This is not the law in New York State. In every case, juries are charged on the law by the presiding judge and are told they are bound to accept the law whether or not they agree with it. In every medical malpractice case, jurors are instructed that “a doctor does not guarantee a good result” and that “a bad result to the patient, by itself, does not make the doctor liable.”

They are further charged that “a deviation or departure from accepted practice” is the standard for negligence by a physician.

The writer also complains about “sympathetic, misinformed juries.” This is unfair to the excellent and diligent people who serve on our juries. It also ignores the jury charge wherein jurors are instructed that they must not base their verdict on sympathy but rather on the law and on the evidence heard in the courtroom. Juries are not “misinformed,” because they hear all of the evidence and are instructed on the applicable law.

On this latter point, it is important to note that, to my knowledge, the writer did not hear any of the testimony because he was never in the courtroom for that trial. Just as judges and juries cannot properly decide a case they did not hear or see in person, I would respectfully submit that the writer should not do so.

Lastly, his observations that physicians might engage in a “work stoppage,” and that “someone suggested refusing to treat attorneys and their families” due to a single verdict, strike me as a little extreme. They also ignore the facts that, in Erie County, approximately 75 percent to 80 percent of medical malpractice trials end in a verdict favorable to the physician and there are very few cases that settle for the policy limits.

I am not for a moment defending any jury verdict, specific attorneys or insurance carriers. Nevertheless, a misstatement of New York law, and an uninformed impeachment of the constitutionally protected jury process, warrants a respectful response.

John M. Curran is a New York State Supreme Court justice.