Professional Negligence Law Reporter

Crayton v. Sher, 2018 WL 6519352 (N.Y. App. Div. Dec. 12, 2018).

A New York appellate court held that a trial court erred when it instructed a jury on the emergency doctrine in a case involving a physician’s alleged mishandling of a patient’s blocked airway.

Here, Sally Jones underwent spinal surgery and developed swelling in her neck. She underwent a tracheostomy and a tracheotomy, which enabled her to breathe. Although she began to improve, she experienced complications after a nurse and respiratory therapist removed a valve that allowed her to speak with the tracheostomy tube. Jones developed shortness of breath, and her oxygen saturation levels dropped to low levels. Anesthesiologist Gary Sher was called to assist.

When Sher arrived at Jones’s bedside, she was cyanotic and bradycardic. An ENT advised Sher to remove Jones’s tracheostomy tube; however, Sher attempted conservative measures, requesting assistance from a fellow anesthesiologist, who went to another part of the hospital to retrieve a fiberoptic bronchoscope. Jones continued to decline, and Sher later removed and replaced the tracheostomy. Nevertheless, Jones died that evening.

Jones’s estate sued the hospital, Sher, and others, alleging medical negligence. Over the plaintiff’s objection, the trial court instructed the jury on the emergency doctrine. The jury found for the defense, and the trial court denied the plaintiff’s motion to set aside the verdict.

Reversing, the appellate court found that the emergency doctrine applies when a doctor is confronted with a sudden and unforeseen condition, forcing him or her to provide care in circumstances that are less than optimal. Citing case law, the court also found that the doctrine does not apply when a physician was trained and prepared for a specific emergency. In this case, the court said, it was foreseeable that Jones’s tracheostomy tube would become blocked. Creating a new airway by replacing the blocked tube was a procedure that Sher was trained and qualified to perform. In fact, the doctor was able to replace Jones’s blocked tube in less than a minute when he finally performed the procedure. Accordingly, the court concluded that there was no sudden and unforeseen condition at issue in the case, and the defense was not entitled to the emergency doctrine instruction.

Plaintiff counsel: Brian J. Isaac and Kenneth J. Gorman, both of New York City.