The opinion
Scudder, J.
(dissenting in part). I join with Justice Kehoe in his dissent in concluding that Supreme Court properly gave the “error in judgment” charge with respect to the method of David L. Gandell, M.D. (defendant) in suturing the incision wound of Valerie Martin (plaintiff). Plaintiffs’ expert testified that suturing at the fascia was required to prevent the bowel from being drawn into the incision wound, although more invasive procedures were necessary to suture at the fascia. Plaintiffs’ expert further testified that suturing at the skin was not within the standard of care to close the suture wound. Defendant’s expert testified that suturing at the skin was the standard of care at the time the procedure was performed in 1993 and at the time of the trial in 1999; that attempting to suture at the fascia, which could not be visualized in a 10 millimeter trocar site, could result in harm to the patient; and that the instrumentation to permit a suture at the fascia of a 10 millimeter trocar site was not available in 1993. Defendant testified that suturing at the skin was the standard of care in 1993; that he utilized that method in closing the suture wound; and that he added a stitch at a point one third of the way into the three-inch incision in an attempt to prevent a collection of fluid that could result in an infection of the wound, a risk associated with plaintiffs obesity.
In my view, the majority improperly relies upon Spadaccini v Dolan ( 63 AD2d 110, 120-121 ) in concluding that the only issue is whether defendant deviated from the degree of care a reasonable physician would have exercised under the circumstances. The majority concludes that defendant failed to choose between two or more methods that are medically acceptable for the closing of a suture wound and thus that the jury should not have been instructed on the “error in judgment” charge. The defendant doctors in Spadaccini treated plaintiff’s decedent in a manner differently from any of the treatment options that were testified to as medically acceptable treatment options by the parties’ experts, and there is no indication that defendant doctors testified that their treatment of plaintiff’s decedent was within the standard of care. In this case, however, evidence presented by defendant established that the method that he used to suture the incision wound was a medically acceptable method at the time the procedure was performed (cf., Spadaccini v Dolan, supra, at 120-121). Thus, Spadaccini is distinguishable from this case on its facts and, in my view, inapplicable.
The dispute in this medical malpractice action with respect to the surgical procedure is whether the closure of the incision *870 wound was properly done at the fascia or at the skin; adding a second stitch as a precautionary measure merely supplemented the closure at the skin and, contrary to the majority’s conclusion, was not a third alternative to close the suture wound. The majority acknowledges that there was testimony concerning two alternatives to close the suture wound: stitching the wound at the fascia and stitching at the skin. In my view, the “error in judgment” charge was properly given; experts will rarely agree upon medically acceptable methods of treatment (see, Capolino v New York Health & Hosps. Corp., 199 AD2d 173, 173-174 ) because in most medical malpractice cases, the method of treatment is the very essence of the malpractice allegation (cf., Nestorowich v Ricotta, 281 AD2d 870 [decided herewith]). In this case, as in Capolino v New York Health & Hosps. Corp. (supra, at 174), “[t]he acceptable courses had been testified to, though not all by any one witness, and it was possible for the jury to determine that there was indeed more than one course acceptable under the medical standards of the time of treatment.” We have consistently approved the use of the “error in judgment” charge in these circumstances, i.e., where the parties’ experts disagree with respect to medically acceptable methods (see, Ellsworth v Chan, 270 AD2d 811 , lv denied 95 NY2d 757 ; Haase v Cole, 236 AD2d 860, 861 , lv denied 90 NY2d 807 ; Petko v Ghoorah, 178 AD2d 1013, 1014 ).
The majority notes that defendant did not testify that he considered the alternatives before choosing the manner in which he stitched the incision. I agree with Justice Kehoe in his dissent that there is no requirement that defendant expressly state that he considered alternative methods. In any event, even assuming, arguendo, that there is such a requirement, I conclude that giving the charge without that testimony was harmless error (see, Nestorowich v Ricotta, supra). The verdict of no liability is necessarily based upon the jury’s determination that defendant utilized a medically acceptable procedure, regardless of whether he considered two or more alternatives. (Appeal from Judgment of Supreme Court, Monroe County, Siracuse, J. — Negligence.) Present — Pigott, Jr., P. J., Green, Hurlbutt, Scudder and Kehoe, JJ.