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Supreme Court Grants Appeal to Consider “Error in Judgment” Defense in Medical Malpractice Cases

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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).

In Passarello, a two-month old baby boy was treated several times by the defendant physician in 2001, for what was believed by the physician to be symptoms of gastroesophageal reflux. When the boy's symptoms persisted after multiple visits, his parents brought him to a nearby emergency room, where he was ultimately determined to be in severe respiratory distress characterized by an extremely low heart rate. Despite intervention on the part of the hospital staff, the boy died from what was revealed on autopsy to be a viral infection of the heart muscle known as diffuse viral myocarditis.

Eventually, the parent plaintiffs filed suit against the defendant physician and her practice group on July 28, 2003. On April 29, 2009, the jury delivered a verdict on behalf of the defendants. Notably, during the jury charge, the trial judge instructed the jury on not only the objective standard of professional negligence, but also what amounted to the "error in judgment defense" on behalf of the defendant physician. Prior to these instructions, defense counsel had also emphasized the error in judgment doctrine in her closing argument, pointing out the physician's state of mind and her desire to treat the patient in the manner she believed best.

Following post-trial motions, plaintiffs filed an appeal to the Superior Court, claiming that the trial court erred in charging the jury on the "error in judgment" rule, and that accordingly, the award of a new trial was warranted. Relying on the Superior Court's holding in Pringle v. Rapaport, 908 A.2d 159 (Pa. Super. 2009), which effectively eliminated the "error in judgment" defense in medical malpractice cases, plaintiffs asserted that such an instruction "wrongly inject[ed] a subjective element into the jury's deliberations when the standard of care for physicians is objective in nature."

Notwithstanding the fact that the Pringle case had been filed almost six years following the complaint in Passarello, the Superior Court held that Pringle, and its effective denouncement of the "error in judgment" defense, could be retroactively applied to Passarello because the final verdict in Passarello had not been entered until after the date on which Pringle was filed.

Under the application of the Pringle case, the Superior Court determined that the award of a new trial was "imperative." Notably, the court held that, as in Pringle, the trial court's instruction in Passarello "gave every indication that a physician may avoid liability for otherwise negligent acts if at the time in question he had done the best he could." Id. at 1166. Furthermore, because defense counsel gave particular focus to the defendant physician's state of mind, the court noted that such a tactic improperly shifted the focus of the argument to the physician's professional character, as opposed to the objective standard of care at issue. Given that counsel's arguments effectively exploited the erroneous instruction by the trial court, the Superior Court held that the court's error could not be minimized, and as such, a new trial was warranted.

Pursuant to its allowance of defendants' appeal, the Court will now consider whether the Superior Court's retroactive application of Pringle was consistent with previous rulings on retroactive application. In addition, according to the physician's petition, the Court will examine whether the award of a new trial violated prior precedent when plaintiffs failed to object to the "error in judgment" instruction at trial, and whether, under the circumstances, the error of the trial court was truly incurable.

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