¶1I would reverse the judgment as to defendants doctors and order a new trial as to them on the issue of liability.
¶2CPLR 4110-b provides: "At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court, out of the hearing of the jury, shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed.” (Emphasis added.)
¶3In accordance with that statute, defendants doctors submitted written requests to charge, of which request No. 18 was a request to the effect that defendants are not liable for a mere error of judgment. This is of course the rule stated in the leading case of Pike v Honsinger (155 NY 201, 210). The Judge, before summations, stated that he would give the charge in substance. Plaintiff’s attorney stated that he had no objection. The attorneys summed up to the jury. The Judge then charged the jury and did not say anything about errors of judgment. Defendants excepted to that failure. The court stated that he did not think the question of judgment was appropriate to this particular case.
¶4Defendants’ attorneys were explicitly told before the summation that something would be in the charge, and though the summation is not transcribed, defendants indicated that they made their argument based on that assumption and then, without notice, the Judge failed to give the charge. Defendants were thus deprived of the benefit of CPLR 4110-b, i.e., the right to be informed before summation as to what the Judge’s ruling would be on their request to charge.
¶5It may well be that after making the ruling under CPLR 4110-b, the Judge came to the conclusion that the instruction that he said he would give was erroneous. I do not say that in *126such circumstances the Judge must give an erroneous instruction; but he must do something to give the parties the benefit of the statute, e.g., permit them to reopen summations, or, perhaps, order a mistrial. What I think he cannot do is what the Judge did in this case—simply make no effort to remedy the prejudice to the parties.
¶6In fact I am inclined to the view that it was error for the court not to give the charge on error of judgment. The doctors here apparently made deliberate decisions not to perform a tracheotomy, and to put the patient in a private room with certain equipment and safeguards rather than in an intensive care unit. These may have constituted wrong medical treatment. But the doctors were entitled to have submitted to the jury the question whether this treatment, even assuming it to be wrong, constituted a "want of ordinary and reasonable care” or, on the other hand, "a mere error of judgment” in which the doctors did "what he thinks is best after careful examination.” (Pike v Honsinger, supra, p 210.) And the Judge should have charged the jury on that dichotomy.
¶7Lane and Sullivan, JJ., concur with Fein, J.; Sandler, J., concurs in result only; Silverman, J. P., dissents in part in an opinion.
¶8Judgment, Supreme Court, Bronx County, entered on April 13, 1977, reversed, on the law and on the facts, and the matter remanded for a new trial, with $60 costs and disbursements of this appeal to abide the event, unless plaintiff, within 20 days after service by appellants upon plaintiff of a copy of the order of this court, with notice of entry thereof, stipulates to reduce the verdict to $200,000 as damages for wrongful death and $25,000 as damages for conscious pain and suffering, both damage awards to be apportioned on the basis of 80% against defendant doctors and 20% against defendant hospital, in which event the judgment, as so modified, is affirmed, without costs and without disbursements.