Historically, trial courts could instruct the jury in medical malpractice actions that a physician was not responsible for “mere errors of judgment” or the use of “best judgment” unless the resulting error constituted, or was the result of, negligence.  This so called “error of judgment” standard could serve to absolve physicians from liability.  With the promulgation of the Supreme Court’s Suggested Civil Jury Instructions in 1981, however, the “error of judgment” charge was eliminated.  The committee appointed by the Supreme Court to create the Suggested Jury Instructions explained that the focus should be on whether the physician’s conduct complied with the applicable standard of care, and that phrasing related to “judgment” risked misstating the law and misleading the jury.  Thereafter, however, some trial courts nonetheless continued to give the “error of judgment” charge, while others refused.  Several Superior Court panels addressed decisions by the trial courts to either give, or refuse to give, “error of judgment” charges, with inconsistent results.  In 2009, the Superior Court undertook to reconcile these prior inconsistent decisions.  In Pringle v. Rapaport, 2009 PA Super. 171 (2009), the Court performed a comprehensive review of the precedent to that point and, ultimately, concluded that the “error of judgment” charge should not be given in medical malpractice cases.  In so holding, the Court explained that the purpose of charging the jury is to clarify issues which the jurors must determine, and the fundamental issue in a medical malpractice case is whether the defendant breached the applicable standard of care.  The “error of judgment” charge fails to clarify this fundamental issue and is inherently confusing for juries.  Further, the Court stated that the “error of judgment” charge “wrongly injects a subjective element into the jury’s deliberations,” by focusing them on the physician’s state of mind, which is irrelevant.  Subsequently, in 2011, the Superior Court in Passarello v. Grumbine, 2011 PA Super 199 (2011), further concluded that the holding in Pringle could be applied retroactively.  Thus, the law was settled.  Just recently, however, the Pennsylvania Supreme Court has agreed to hear an appeal of Passarello to consider whether the “error of judgment” charge is ever appropriate in medical malpractice cases and whether it was error for the Court to apply the holding in Pringle retroactively.  Stay tuned.

Michael Ksiazek is a member of Stark & Stark’s Yardley, PA office, concentrating in Accident & Personal Injury Law. For more information, please contact Mr. Ksiazek.