'Error in Judgment' Jury Charge Barred by State Supreme Court

, The Legal Intelligencer

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An explicit instruction on "error in judgment" may not be given in a medical malpractice case because it exposes jurors to a subjective standard, a deeply divided state Supreme Court has ruled.

"If a defendant desires an instruction that conveys the principle that an unfortunate result does not by itself establish negligence, he or she may request from the trial court an instruction, in the appropriate case, that an unfortunate result does not by itself establish negligence," Justice Seamus P. McCaffery said for the four-justice majority in Passarello v. Grumbine. "There is no need to resort to the use of ambiguous and problematic phrases such as 'error in judgment' or 'mistake in judgment.'"

The ruling has one of the attorneys in the case calling the decision "one of the most important medical malpractice cases" in his lifetime, serving to promote the fact that the standard of care, and not a doctor's intent, is how the delivery of health care should be judged in a medical malpractice action.

Medical malpractice actions "are always defended by saying 'this doctor meant well,'" said Clifford Rieders, one of the plaintiffs attorneys in Passarello. "In every case, in every jurisdiction in the United States, that defense is made. What this opinion says is that is not appropriate. It has no place."

In Passarello, a three-judge state Superior Court panel granted a new trial to the parents and estate of a two-month-old baby who died from a heart infection while in the care of Dr. Rowena Grumbine and Blair Medical Associates, according to court papers.

The court retroactively applied its 2009 ruling in Pringle v. Rapaport, which banned the error-in-judgment defense in medical malpractice cases. Such a defense stands for the argument that doctors are not liable for errors in their judgment when making medical decisions if their care otherwise met the standard of care.

In Passarello, as in Pringle, the trial judge gave a jury instruction beyond the standard-of-care instruction and also discussed the error-in-judgment rule.

"'Under the law, physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence,'" Superior Court Judge John T. Bender said, quoting the Blair County trial judge's jury instruction in Passarello.

The jury eventually handed up a defense verdict in the case.

Bender said the trial judge's jury instruction during the trial introduced Grumbine's state of mind as an element for the jury's consideration. Such a charge attenuated the objective standard of care imposed by Pennsylvania law "and obfuscated the manner in which the jury might properly weigh the evidence," he had said.

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