Kimmel v. Dayrit

HUMPHREYS, J.A.D.,

concurring.

I concur with my colleagues that the jury verdict for the defendant must be reversed and the case remanded for a new trial. Dr. Dayrit admittedly made a mistake when in 1989 he failed to obtain and review the CEA test report. His conduct cannot be squared with accepted medical practice. Further, the record would support a jury finding that his error caused Dr. Kimmel financial damage. See majority opinion at 356, 693 A.2d at 1299. Under these circumstances, the jury verdict of no deviation from accepted medical practice is a miscarriage of justice which must be…