Nestorowich v. Ricotta

Nestorowich v. Ricotta

Opinion

 [*395]  [***669]  [**126]    Ciparick, J.

 The primary issue on this appeal is whether, in a medical malpractice action arising out of a surgical procedure, a  [*396]  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.

In 1994, defendant, Dr. John Ricotta, a vascular surgeon, performed an adrenalectomy  [***670]   [**127]  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,  [****6]  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 adrenal gland itself. The growth was, in all respects, extraordinary. Greco recommended surgery to remove the mass, but decedent feared that the operation would result in the loss of his remaining kidney and ultimately force him to undergo dialysis. Nevertheless, decedent agreed that surgery would provide a better chance for survival, and Greco referred decedent to defendant. Defendant met with decedent and his wife, and disclosed the risks inherent in such a procedure. Decedent signed a consent form.

Defendant performed the left adrenalectomy on April 6, 1994 at Millard Fillmore Hospital. A number of factors increased the difficulty of this typically arduous procedure. At the time of the surgery, decedent weighed approximately 300 [****7]  pounds. His size increased the depth of the surgical cavity, and impaired the doctor's ability to see. The tumor was surrounded by an uncertain number of blood vessels and small arteries, all of which were a potential source of bleeding. Defendant controlled the bleeding by meticulously tying off, or ligating, "bleeders" and vessels as he encountered them. Additionally, the tumor, organs and vessels were encased in layers of muscle and fatty tissue. Ultimately, defendant completed the surgery, removing the tumor in its entirety.

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