En banc panel of Pennsylvania Superior Court Decides Jury Should Not Be Instructed on Doctor’s “Error of Judgment” – Decision Protects Patients’ RightsBelow is the link to a Pennsylvania Superior Court decision from August 31, 2009. In Pringle v. Rapaport, ___ A.2d ___ (Pa. Super. August 31, 2009), the Superior Court reversed a Clearfield County Court of Common Pleas verdict for the defendant doctor.
The case arose when Austin Pringle’s shoulder became stuck behind his mother’s pubic bone during his delivery. This is known as shoulder dystocia. The defendant doctor used the appropriate series of maneuvers to emergently deliver Austin, but used force in the final maneuver which caused Austin to have severe nerve damage to his right arm. In fact, nerves in Austin’s upper back and neck were torn or stretched. This brachial plexus (web of tissue and nerves) injury resulted in Austin’s right arm being paralyzed.
Austin’s family alleged the doctor’s delivery was performed negligently. Their theory of liability was that the doctor had used too much traction (force to remove the baby), when he made the last maneuver, and that excessive force caused the injury. Further, there was no other explanation for how Austin was injured, and therefore it must have been the excessive force the doctor used in delivering him.
Standard of Care and “error of judgment”
The case went to trial, and the jury was instructed in the standard of care owed by the defendant doctor. The charge read first,
A physician must have and use the same knowledge and skill and exercise the same care as that which is usually had and exercised in the medical profession. A physician whose conduct does not meet this professional standard of care is negligent.
Later in the instructions, the jury was told,
Folks, if a physician has used his best judgment and he has exercised reasonable care and he has the requisite knowledge or ability, even through complications resulted, then the physician is not responsible, or not negligent. The rule requiring a physician to use his best judgment does not make a physician liable for a mere error in judgment provided he does what he thinks best after careful examination.
Pringle appealed, and argued that the error of judgment charge did not help the jury with the standard of care, against which the defendant doctor’s conduct was to be measured, but was confusing instead.
The Pennsylvania Superior Court agreed with the argument Pringle’s lawyer put forth. The court based its opinion mainly onDonaldson v. Maffucci, 156 A.2d 835 (Pa. 1959), and Smith v. Yohe, 194 A.2d 167 (Pa. 1963), which focused on whether the physician had violated the requisite standard of care, rather than on whether he committed an error of judgment. In Yohe, the court stated,
If a physician, as an aid to his diagnosis, i.e. his judgment, does not avail himself of the scientific means and facilities open to him for the collection of the best factual data upon which to arrive at his diagnosis, the result is not an error of judgment but negligence. Yohe, 194 A.2d at 173.
Though, in the past and in fact in Yohe, the Pennsylvania Supreme Court had included in its principles for physician liability that “a physician is not liable for an error of judgment,” the court left the concept behind beginning with Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971). The Committee on Proposed Standard Civil Jury Instructions recognized this fact, and has not included “error of judgment,” in its instructions since its first publication and the notes to the instruction for physician negligence said,
The inclusion of such phrases in jury instructions [error in judgment] seems unlikely to serve that purpose [helping to understand standard of care]. To the contrary, such phrases, at worst, risk misstating the law. At best, they seem unnecessarily circular in form.
The court was most concerned that a jury would understand that the physician’s conduct included actions, judgments, and decisions, all of which can meet or violate the standard of care. Further an error in judgment charge appeared to be subjective, and the physician standard of care remains an objective one.
res ipsa loquitur and “error of judgment”
The error in judgment issue again arose in the instructions for res ipsa loquitur. First the court charged the jury,
…You may infer that the harm suffered by Austin was caused by negligence of [Dr. Rapaport] if your [sic] find the following three factors are present: First that the accident, or the harm involved here, is of a kind that ordinarily does not occur in the absence of negligence…that the other responsible causes…have been sufficiently eliminated…[Dr. Rapaport] had exclusive control involved here at the time when the negligence that is claimed would have occurred…
Then the court charged,
Physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake of judgment. Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgments unless it is proved that an error of judgment was the result of negligence. And folks, as a general proposition that applies in any case, doctors or physicians do not guarantee a cure to their patients, and negligenceshould not be presumed from the occurrence of an unfortunate outcome. (emphasis added)
In short, the res ipsa loquitur rule in medical malpractice is negligence is proved when someone shows they have, “…been injured by a casualty of a sort that normally would not have occurred in the absence of the defendant’s negligence.” Quoting Quinby v. Plumstead Family Practice, 907 A.2d 1061, 1071 (Pa. 2006). It was held, the two instructions were contradictory, because it instructed both to infer and not to infer liability for the happening of the injury.
The Pennsylvania Superior Court cleared up a confusing area of medical malpractice law by recognizing an “error of judgment” jury instruction is confusing at best, and, depending on the theory of liability, directly contradictory to the rule of law. Schmidt Kramer injury lawyers believe the Court protected patients’ rights in this decision, and are available to discuss your case in the context of the existing medical malpractice law in Pennsylvania.
Submitted by, Joe Chapman, Schmidt Kramer Injury Attorney
Category: Birth Injury
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