An en banc panel of the Superior Court of Pennsylvania recently ruled that it was improper for trial courts to instruct juries that a physician should not be held liable if he exercised his best medical judgment in treating the patient. Pringle v. Rapaport, 2009 Pa.Super. 171, 2009 Pa.Super. LEXIS 3267 (Pa. Super. Ct. 2009). The “error in judgment” jury instruction had advised juries that a physician was not liable for medical judgments that were shown ultimately in error as long as the judgment was reasonable under the circumstances. This instruction had been controversial because several previous panels of the Superior Court had issued contradictory and irreconcilable opinions on the question, and the Pennsylvania Supreme Court has never addressed this issue. The effect of the Pringle decision is to raise yet another obstacle in defending the medical and clinical decision making of physicians in the courtroom. (See author’s discussion of this topic in a prior edition of In Summation, Winter, 2008 (link)).

Before discussing the “error in judgment” jury instruction, it is important to review the Pennsylvania standard suggested jury instruction on a physician’s duty of care. This standard jury instruction states as follows:

A physician must have and use the same knowledge and skill and exercise the same care as that which is usually had and exercised in the medical profession. A health care provider whose conduct does not meet this professional standard of care is negligent.

It is noteworthy that there is no reference in this standard proposed jury charge to the exercise of a physician’s judgment.

The Superior Court in numerous prior decisions had split on whether an “error in judgment” charge should be given in particular cases. The heart of the “error in judgment” jury instruction was highlighted in Blicha v. Jacks, 864 A.2d 1214 (Pa. Super. 2004), in which the Superior Court affirmed the following jury instruction given by the trial court:

Furthermore, a physician is not liable for a mere error of judgment. The medical judgment itself of a doctor must be based on the same degree of skill, knowledge and care as that normally exercised in the medical profession. If the physician does employ the required skill, knowledge and care customarily exercised in his profession to make a judgment, then this will not render him or her liable.

In Pringle, a defendant obstetrician was faced with a birth complication known as shoulder dystocia, a condition where the baby’s shoulder becomes stuck behind the mother’s pubic bone. It was agreed among plaintiff and defense experts that there are three maneuvers that ought to be employed by the physician in seeking to address a shoulder dystocia. There was no dispute that all three methods were used by the obstetrician, Dr. Rapaport. The only dispute between the experts concerned whether the amount of force used during the third procedure, known as the “corkscrew” procedure, was below the standard of care. Plaintiff’s experts opined that the injury would not have occurred absent the negligent application of excessive force by the obstetrician. The defense expert agreed that the amount of force in a corkscrew procedure is a skill learned through training and experience, and that the amount of force Dr. Rapaport exerted was excessive and caused the injury. However, the defense expert also stated that, in his professional opinion, Dr. Rapaport’s application of excessive force was not negligent. The defense expert stated that there was no evidence that the force used by Dr. Rapaport was any more than what was usually done in normal deliveries and the injury to the baby could have occurred even when proper (non-negligent) care was provided. Dr. Rapaport testified that this was the most severe case of shoulder dystocia that he had ever encountered and that he applied the same amount of force as he did in every delivery. Dr. Rapaport insisted that his actions saved the baby’s life. Accordingly, the main issue in dispute was whether Dr. Rapaport executed the corkscrew procedure in a negligent manner.

At the conclusion of the trial, the court instructed the jury that, “Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgment unless it is proven that an error of judgment was the result of negligence.” The jury subsequently entered a verdict in favor of the defendant obstetrician.

In her Opinion on behalf of the majority in Pringle, Judge Donohue surveyed Pennsylvania case law for the past 150 years on the issue of the error in judgment charge, as well as the “two schools of thought” jury instruction.” After freely acknowledging that the Superior Court’s prior decisions were “irreconcilable” the en banc panel of the Superior Court reversed the trial judge, finding that the error in judgment charge is improper in medical malpractice cases. The Superior Court listed two primary reasons for its holding. First, the Court stated that the “error of judgment” charge wrongly suggests to the jury that a physician is not liable for one type of negligence, namely the exercise of his or her judgment. The Court noted that this would be improper because in medical malpractice cases, “The proper focus is whether the physician’s conduct (be it an action, a judgment, or a decision) was within the standard of care.” The Court stated that after a jury has been charged on the fundamental principles regarding a physician’s standard of care, adding an “error of judgment” instruction only confuses, and does not clarify the question of whether there was a deviation from the standard of care.

The second reason given for reversal by the Superior Court was that the “error of judgment” charge wrongly injects a subjective element into the jury’s deliberations. The Court found that this would improperly focus the jury’s attention on the physician’s state of mind at the time of treatment “even though the physician’s mental state is irrelevant in determining whether he or she deviated from the standard of care.”

A dissenting opinion was authored by Judge Orie Melvin. The dissenting opinion, which was joined by one other judge, would have upheld the trial court’s instruction, finding that it accurately reflected that doctors are liable if they deviate from the standard of care, but if a judgment turns out to be wrong, the doctor should not automatically be found to be negligent. The dissent noted that the expert testimony revealed that there was no way to determine when excessive force was being applied. Even plaintiff’s expert had admitted that it was impossible to quantify how much force was being used because there was no way to measure that force while the doctor was performing a delivery. The dissent stated that it was appropriate, given the facts, that the jury should have been given an instruction regarding the role of medical judgment in making treatment decisions.

In its decision, the Superior Court noted that other states have not adopted Pennsylvania’s formulation of the “error of judgment” charge. However, other states do have jury instructions regarding “medical judgments”. In New Jersey, for example, the standard suggested jury instruction for cases which involve medical judgment states as follows:

The doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnoses/treatment choices must be in accordance with accepted standard medical practice. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the standard of care for treatment or diagnosis with respect to [specify what type of treatment or diagnosis is involved] did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.

In its decision, the Superior Court noted that the concept of errors in judgment typically involves choices in treatment that could eventually be covered by the “differing schools of thought” jury instruction. Under that instruction, the defendant has the burden of proof to show that the course of treatment chosen was accepted by a considerable number of physicians. However, practically speaking, trial courts are reluctant to give the differing schools of thought instruction. For example, in the Pringle case, the Superior Court noted that the differing schools of thought instruction would not have been applicable because there was no dispute that Dr. Rapaport did follow the generally accepted procedures for the situation which he confronted.

Why has the “error in judgment” charge been important and highly debated? It is important because it meets at the intersection between law and medicine. In the typical lawsuit, plaintiff presents proof through expert testimony that the medical judgments of defendant were negligent and below the standard of care. However, the practice of medicine involves the exercise of judgments. A physician typically defends his actions and judgments by placing those judgments in the medical context that existed, and was known or knowable, at the time of treatment. After the Superior Court’s decision in Pringle, juries will no longer be instructed regarding those medical judgments. Rather, the focus will solely be on the objective “conduct” of the physician. While the physician can still explain the medical judgments he or she made during the treatment, the jury will not be instructed regarding those medical judgments.