Medical negligence, in which a doctor or other healthcare provider fails to meet an objective standard of care or simply forgets to do something in the course of treatment that is considered a necessary part of case, such as taking a medical history and clearly telling a patient to abstain from physical activity during treatment. Cases of negligence make up a significant portion of all medical malpractice cases, and as with all medical malpractice cases, are extremely difficult to successfully pursue even for experienced medical malpractice attorneys due to the need for expert witness testimony and the quality of defense doctors are able to afford. One particularly common defense is what is known as an “error in judgment”. In short, doctors are, of course, human, and the law has recognized that, as experts in their field, some leeway should be given to the doctor’s professional opinion.
In a case currently before the Pennsylvania Supreme Court, the validity of this defense is being reconsidered. One of the current cases before the Court, Passarello v. Grumbine, was the end result of a misdiagnosis of their two-month-old son, Anthony, which, it was argued, was the result of an error in judgment rather than outright negligence. Though the jury ultimately sided with the defense, Judge Bender of the Superior Court ordered a new trial be given, as “defense counsel's arguments…’exploited’ the trial judge's jury charge” regarding the Error in Judgment rule.
In addition, the Superior Court Judge wrote that the instruction on this rule was, in fact, erroneous due to a precedent set in 2009 in Pringle v. Rapoport, which effectively banned the Error in Judgment defense in Pennsylvania. Whether it can be applied retroactively, if at all, is the question currently before Pennsylvania’s Supreme Court. Though specific aspects of medical malpractice law, as in all areas of the law, vary by jurisdiction, broader trends such as the Error in Judgment defense in negligence cases tend to be mirrored in other states. Though the ruling by the Pennsylvania Supreme Court will not have a direct impact here in Missouri, our state does allow for the Error in Judgment defense to medical malpractice claims; therefore it should be an interesting case to watch, as state lawmakers and courts often look to each other for solutions to complex legal questions such as the nuances of medical malpractice law.