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Supreme Court Definitively Bans “Error in Judgment” Defense in Medical Malpractice Cases

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As previously reported on obrlaw.com, on May 23, 2012, the Supreme Court of Pennsylvania granted petitions for allowance of appeal filed on behalf of a defendant physician and her practice group, to address the Superior Court's analysis of the "error in judgment" defense in the underlying case of Passarello v. Grumbine, M.D., et al., 29 A.3d 1158 (Pa. Super. 2011).

On February 7th, 2014, a divided Pennsylvania Supreme Court prohibited the “error in judgment” jury instruction from medical malpractice cases as it creates a risk of clouding jurors’ understanding of the applicable standard of care.  Previously, this defense supported the belief that physicians should not be liable for errors of judgment when their care met the standard of care.  The Pennsylvania Superior and Supreme Court have both found that this defense injects a subjective view into what should be an objective inquiry into whether a defendant physician was negligent.

The case underlying the Supreme Court holding stems from the death of a two-month-old infant in 2001.  The child’s parents sued their pediatrician, who had seen the infant multiple times after his birth and diagnosed him with gastroesophageal reflux.  The parents eventually brought their son to the emergency room where he died of an acute heart infection. 

During trial, plaintiffs’ counsel failed to object to the error in judgment jury instruction and the jury found for the defense.  As a result, the plaintiffs appealed to the Superior Court, which granted a new trial.  The physician defendant and her practice petitioned to the Supreme Court to review the Superior Court’s analysis of the error of judgment defense, as well as the retroactive application of its decision in Pringle v. Rapaport, 980 A.2d 159 (Pa. Super. 2009).  The Pringle decision had denounced the defense in medical malpractice actions based on its potential for confusion.  The Supreme Court granted their petition in 2012.

The Supreme Court’s four-justice majority opinion found that appellants failed to demonstrate that the defense was necessary when others were available.  For example, the “two schools of thought” defense remains as an option to illustrate a physician’s decision-making.  The Court further noted that its standard civil jury instruction committee had declined to include the error in judgment defense as a proposed instruction because of its potential to confuse jurors’ understanding of how to weigh the evidence.  Finally, the court also found that the Superior Court’s reliance on Pringle was proper and that there was no reason to overturn its conclusion that the error in judgment defense was ill-suited for medical malpractice claims.

Justice Edward G. Saylor authored a dissenting and concurring opinion against applying Pringle retroactively to the instant matter.  He felt it should only be applied proactively.  Chief Justice Ronald D. Castile and Justice J. Michael Eakin also wrote dissents.  Chief Justice Castille wrote that there were times when the error in judgment instruction could be properly used in cases where the defendant had more than one viable treatment option and his decision to pursue one over the other fell within the standard of care, but nonetheless resulted in an injury or death.

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