Passarello v. Grumbine, PICS Case No. 14-0193 (Pa. Feb. 7, 2014) McCaffery, J. (50 pages).

SUPREME COURT

The Legal Intelligencer

MEDICAL MALPRACTICE

Negligence • Jury Instructions

Passarello v. Grumbine, PICS Case No. 14-0193 (Pa. Feb. 7, 2014) McCaffery, J. (50 pages).

Where an explicit "error in judgment" instruction was given to a jury, such instruction was likely to confuse the jury, and constitutes harmful error when defendant's argument exploits the erroneous instruction; and where retroactive application of case law explicitly rejecting the "error in judgment" instruction serves the rule, prevents prejudice to the plaintiff and does not detrimentally affect the administration of justice, such retroactive application is permissible. Affirmed.

Appellee Steven Passarello, administrator of the estate of his son Anthony Passarello, brought this medical malpractice action against appellants Dr. Rowena Grumbine and Blair Medical Associates. Over Passarello's counsel's objections, the court utilized Blair's proposed jury instructions that contained an explicit "error in judgment" charge; the jury later returned a verdict in favor of appellants.

The Superior Court overturned the verdict and ordered a new trial on the retroactive application of the holding in Pringle v. Rapaport, which generally rejected the use of an explicit "error in judgment" instruction because such instruction confuses the jury by adding a subjective element into jury deliberation.

On appeal, appellants asserted that appellee had waived his objection to the error in judgment charge, that the Superior Court erred in issuing a blanket prohibition of error in judgment instructions in Pringle, and that a new trial was inappropriate in this case because Pringle should not have been applied retroactively and the error in judgment charge did not constitute harmful error in this case in light of the full jury instructions.

The court held that appellee successfully preserved his objection to the error in judgment charge. Although appellee only specifically to Dr. Grumbine's jury instructions, the court found that because the singular issue in this matter was Dr. Grumbine's actions and behavior, the trial court was on notice of appellee's objection to an error in judgment charge; moreover, the court found both appellants' instructions substantially identical, and therefore appellee had preserved his objection.

The court upheld the Superior Court's blanket prohibition of error in judgment charges in Pringle. The court noted its own commission on standard civil jury instructions had rejected the use of error in judgment charges, and concurred with the Superior Court's conclusion that the terminology of error in judgment charges have the capability to confuse juries, as it may give the impression that there is a type of negligence that results in no liability.

The court found that while communicating the principles that underlie error in judgment charges to juries is permissible, such principles can be communicated to juries without the potential of confusion that explicit error in judgment charges can cause.