Though a Nassau County jury had exonerated an anesthesiologist sued for malpractice and the wrongful death of his patient, yesterday an Appellate Court threw out the defense verdict and gave the patient's family a new trial. The reason the family was entitled to a new trial was because of an error by the trial judge in advising the jury that since the doctor was faced with an emergency situation, he should not be faulted "if it later appears that he did not make the safest choice or exercise the best judgment." The trial judge told the jury just before they decided the case that: " A mistake in judgment or wrong choice of action is not negligence if the person is required to act quickly because of danger." The Appellate Court explained that this instruction to the jury was unfair because the anesthesiologist "was trained and prepared for the specific emergency."

Prior to her death, the patient had a breathing tube placed thru her windpipe that became clogged with secretions. Once the patient's oxygen saturation levels dropped to the low 60's the anesthesiologist was called in who conferred with the ENT who performed the tracheotomy. The ENT advised the anesthesiologist to remove the breathing tube and replace it with a new one. The anesthesiologist delayed and attempted other conservative measures before he successfully removed and replaced the clogged tube within 30 seconds. Unfortunately, the patient passed away shortly thereafter due to the delay. The "emergency situation" principle of law was inapplicable according to the Appellate Division, Second Department, since the anesthesiologist had admitted at trial that "creating airways for patient's is what anesthesiologists do." Crayton v. Sher, 2018 WL 6519352, December 12, 2018