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Argued February 11, 2002

This is an obstetrical medical malpractice case in which the defendant treating physician relies on the medical judgment rule. Defendant Dr. Suresh R. Thani chose to assess fetal movement by asking the mother-to-be to count the number of times she felt the fetus kick, a technique referred to as maternal fetal monitoring, rather than by using modern ultrasound, electronic fetal monitoring and biophysical profile methods that were available in his office. Based on expert testimony for the defense that it was a question of medical judgment which technology to use, the trial court submitted the case to the jury with a medical judgment charge. The jury exonerated defendant of all liability. The Appellate Division affirmed.

The critical issue raised in this appeal is whether the trial court was obligated to instruct the jury that the medical judgment defense was unavailable to defendant if it accepted plaintiff’s theory that it was a deviation from the accepted standard of care for defendant not to have used the more modern fetal monitoring technique. We hold that such an instruction was required because a finding of deviation by the jury removes from the case the factual underpinning required to support a medical judgment defense. Failure to give that instruction in this case constitutes reversible error.

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