In most medical malpractice cases, the default defense is: “medicine is so complex and mysterious that there is no standard by which the doctor can be judged, and thus they cannot be liable.” The lawyers for the doctor or hospital (and their experts) rarely say it outright — because they are worried that jurors and judges will see right through it as a claim that doctors can never be held accountable for anything — but this defense is embedded deeply in most of the arguments they make for the jury. It doesn’t matter if the doctor made an obvious mistake, or if the doctor violated multiple standard guidelines.
Consider this closing argument made by a doctor’s lawyer in the case of Passarello v. Grumbine:
Now every physician must use clinical judgment. You don’t practice medicine by textbook. There’s no guideline that you can go to. You don’t have something on your blackberry well there’s this symptom and this symptom so we’re gonna do this. They have to make decisions. A physician cannot warrant care and they cannot guarantee outcomes because of the uniqueness of treating human beings. To require otherwise, to require physicians to be perfect, is an impossible burden and we—the law recognizes that we will not do that. When you look at [the doctor’s] judgments, were they careless, were they unskilled? When you come to the key issue, the August 2 phone call, she had to use her judgment, and if her judgment was reasonable, then she was not careless and she was not unskilled.
Part of that argument is correct: physicians can’t “guarantee outcomes.” But part of it is terribly misleading: in a medical negligence trial, the question isn’t whether physicians are “perfect,” or “careless,” or “unskilled,” or whether they “use[d] her judgment,” or whether “her judgment was reasonable.” The question is if the physician failed to follow the standard of care demanded of them.
As the Pennsylvania Superior Court concluded, “What counsel’s argument skillfully suggests is that regardless of the objective standard of care, [the doctor], in an exercise of continued self-sacrifice, acted with the best of intentions and made judgments for which she could not be faulted, in part because they were judgments and a physician cannot warrant care.” The defendants’ argument, in turn, played into a jury instruction the judge was giving, which included this language: “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.”
That was the dreaded “error of judgment” jury charge, the subject of considerable plaintiff and court frustration across the United States over the past generation. See Papke v. Harbert, 738 N.W.2d 510, 517 (S.D. 2007)(collecting cases rejecting it). The charge never made any sense; you might as well instruct juries in car accident cases that an “error of judgment” as to the appropriate speed, or whether it was safe to change lanes, or the like would absolve the defendant of any responsibility. The sole reason to tell a jury that they can sometimes decide that an “error” or “mistake” was acceptable would be to invite confusion and ambiguity. “Error” and “mistake” can mean a lot of different things to a lot of different people; there are plenty of “errors” that doctors can make within the standard of care, and then there are plenty of “errors” that are indisputably negligence. That’s why the law doesn’t use terms like “error” and “mistake,” but instead sticks with the standard of care, i.e., what is expected of a reasonable doctor in that circumstance. A doctor’s good faith isn’t the issue — the issue is whether they fulfilled their professional obligations.
Last week, the Pennsylvania Supreme Court firmly rejected the jury instruction inPassarello v. Grumbine, kicking it out of all malpractice cases. The decision was a long time coming. Pennsylvania’s Committee on Proposed Standard Civil Jury Instructions had refused to use the “error of judgment” charge since 1981, and then the Superior Court had rejected it in Pringle v. Rapaport, 980 A.2d 159 (Pa.Super. 2009) (en banc), but the charge had still lingered around, validating misleading defense arguments in a handful of cases each year.
It’s not so much a “victory” for patients so much as “not a loss,” but in the current anti-patient climate that’s reason for celebration. Truth is, our medical malpractice system remains terribly broken, in that the vast majority of malpractice goes unaddressed, the vast majority of malpractice victims can’t even find a lawyer much less recover compensation for their losses, and there are nowhere near enough incentives to encourage hospitals and malpractice insurance companies to take steps to reduce the incidence of malpractice in the first place.