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Don’t Take Away my Error in Judgment

Defendants in medical malpractice cases often feel that the instructions to the jury are unfair and place a burden on the defense that is difficult to overcome.  In the past, there was one jury instruction, referred to as the ‘error in judgment” charge, which was perceived as leveling the playing field.  Unfortunately, due to a recent Superior Court Ruling, that instruction is no longer available to defendants and its applicability has been further restricted.

On September 9, 2011, the Superior Court in Passarello v. Grumbine, M.D.,  --- A.3d.---, 2011 WL 3963587 (Pa. Super), held that its prior ruling in Pringle v. Rappaport, D.O., 980 A.2d. 159 (Pa. Super 2009), prohibiting the application of the “error in judgment” rule, would apply retroactively to cases in which the final judgment on the verdict had not been entered before the Court’s 2009 filing date in Pringle.  Therefore, the “error in judgment” charge is now prohibited in any cases filed before the Superior Court’s ruling in Pringle where no verdict of final judgment has been entered.

By way of background, until August 2009, defendants in medical malpractice cases often argued to the jury that when physicians used their best judgment and  exercised reasonable care in the treatment of patients their conduct did not constitute negligence.  The “error in judgment” charge generally provided that “physicians are not responsible for ‘mere errors in judgment’ or the use of ‘best judgment’ unless the resulting error constitutes, or was the result of, negligence.”  Pringle at 165.    Essentially, the courts instructed the jury that defendants were not liable for mistakes or errors in judgment.  If defendants were successful in presenting this argument to the jury, trial courts often instructed juries on the defendant’s proposed “error in judgment” charge which often led to successful verdicts in favor of the defendant.  Over the years, many appeals were taken regarding this jury instruction with varying results.

On August 31, 2009, the Superior Court in Pringle addressed the long-debated issue and abolished the “error in judgment” defense.  The Pringle Court, sitting en banc, stated that the “fundamental issue in medical malpractice cases, is whether the defendant violated the applicable standard of care and, if so, whether that violation resulted in injury to the plaintiff.  Thus, we must determine whether an ‘error of judgment’ instruction serves to clarify the fundamental issue.”  Pringle at 173.  The Court held, “[F]or at least two reasons, we conclude that the instruction was inherently confusing for juries and thus has no place in medical malpractice cases.”  Id. In support of the Court’s decision, it stated that “the ‘error of judgment’ charge wrongly suggests to the jury that a physician is not culpable for one type of negligence, namely the negligent exercise of his or her judgment.”  The Court further stated, “[T]he ‘error in judgment’ charge wrongly injects a subjective element into the jury’s deliberations…As such, the ‘error of judgment’ neither defines nor clarifies the applicable standard of care, and may likely mislead the jury during its deliberations.” Id. at 173-74.

In Passarello, the Superior Court, again addressed the issue in a case involving a two-month old baby who died as a result of undiagnosed and untreated diffuse acute viral myocarditis.  At trial, the “error in judgment” defense was presented to the jury and a verdict was rendered in favor of the defendants.  Plaintiffs appealed after their motion for post-trial relief was denied.  The Appellants argued, inter alia, that the trial court erred in giving the “error in judgment” charge to the jury. Based on its holding in Pringle, the Court granted a new trial. 

The Appellees argued that the holding in Pringle should not apply to the Passarello case as the verdict in Passarello was reached prior to the filing of the decision of Pringle.  The Superior Court addressed this argument and held that “although Pringle was not released into the public domain until after the jury reached its verdict here [in Passarello], this case remained in litigation, pre-judgment, as the Passarello’s awaited disposition of their post-trial motion and both parties awaited transcription of the records. In point of fact, the trial court did not enter judgment on the verdict until September 7, 2010, more than a full year after publication of the decision in Pringle.”  Passarello at *4.  Therefore, the Court found “no impediment to retroactive application of the holding in Pringle.”  Passarello at *5.

In a time where the legislature has sought to protect the healthcare industry from the burdens of onerous malpractice verdicts, it is interesting that the Court has stripped healthcare providers of one of their strongest defenses.  We can only wait to see what impact this will have and whether the General Assembly will step in and further rebalance the interests of healthcare providers and medical malpractice plaintiffs.

By John F. McGreevey

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