Blog Commentary – “Error in Judgment” Defense Eliminated

Pennsylvania Superior Court Eliminates One Hundred and Nine Year-Old “Error in Judgement” Defense for Doctors in Medical Malpractice Cases.

In the case of Pringle v. Rapaport, Superior Ct. Pa. docket 173 WDA 2007, August 31, 2009, 2009 Pa.Super. 171, the court held that the “error of judgment” instruction should no longer be given to jurors in describing the applicable Standard of Care in medical malpractice cases.  According to the Superior Court, sitting en banc, that historical and commonly used instruction tends to confuse, rather than clarify, the issues the jury must decide in a medical malpractice case. However, since the 1891 case of Williams v. LeBar, 141 Pa. 149, 21 A. 525 (1891) the law of Pennsylvania had been that a physician was entitled to the application of the “Error in Judgment” defense, and that defense had been used by countless numbers of doctors to defeat non-meritorious medical malpractice claims.

In this case the Pringles sued Dr. Rapaport for medical malpractice as a result of their new-born child having suffered a brachial plexus injury with permanent right arm paralysis during the child’s birth.

All the parties’ experts agreed that the injury occurred by the force exerted on the child’s head and shoulders by Dr. Rapaport as he manually conducted a “corkscrew procedure” required to complete the child’s delivery.  All of the parties’ experts agreed that Dr. Rapaport was dealing with the emergency situation of a shoulder dystocia.  All of the parties’ experts agreed that Dr. Rapaport had properly first attempted the “McRoberts maneuver” and then had properly attempted the application of suprapubic pressure to Mrs. Pringle’s abdomen while applying traction to the child’s head.  All of the parties’ experts agreed that when the first two maneuvers were unsuccessful, it was proper for Dr. Rapaport to engage in a third maneuver, a “corkscrew procedure”, that involved a manual turning of the child’s shoulders.  The third maneuver conducted by Dr. Rapaport lead to the child’s delivery.   Furthermore, all of the parties’ experts agreed that the force which Dr. Rapaport exerted on the child’s head during the “corkscrew procedure” resulted in the child’s brachial plexis injury.

The dispute between the parties’ experts arose in the context of whether the manual force exerted by Dr. Rapaport in performing the “corkscrew procedure” was negligent.  Both parties experts agreed that the force was excessive to the extent that it clearly was more than the child’s brachial plexus could tolerate.  The plaintiff’s expert opined that the force applied was the result of negligence.  However, Dr. Rapaport’s expert opined that the force was not negligent in that there was no indication it was any more than what was usually done in normal deliveries requiring a “corkscrew procedure”.  It was Dr. Rapaport’s expert’s opinion that brachial plexis injuries may still occur even when proper non-negligent force is exerted during the “corkscrew procedure”.  Dr. Rapaport testified that the amount of force to be applied in performing the “corkscrew procedure” comes down to a “tactile sense as you are applying traction … and in your experience in what you have done.”  He stated he was trained both as to the amount of force and as to how to minimize the amount of force to the infant’s head in such a situation.  He testified that the child presented the most severe case of shoulder dystocia that he had ever encountered and that he applied the same amount of traction to the child as he had done in every other delivery.  He insisted that his actions saved the child’s life.  Significantly, both of the parties’ experts opined that the “corkscrew procedure was a proper method to utilize under the circumstances presented.  Furthermore, based upon the Superior Court’s opinion, there was no evidence that any objective standard existed to determine whether Dr. Rapaport’s physical manipulation of the infant was so unreasonably strenuous that it constituted negligence.

As a result, the trial court gave to the jury the following instruction, commonly known as the “Error in Judgment” defense:

“… if a physician has used his best judgment and he has exercised reasonable care and he has the requisite knowledge or ability, even though complications resulted, the physician is not responsible, or not negligent.  The rule requiring the 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 judgment.”

“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 judgement in their professional duties, and they are not liable for errors of judgment unless it is proven that an error of judgment was the result of negligence”.

Following deliberations the jury returned a verdict for Dr. Rapaport.  The plaintiffs then filed a post-trial motion seeking a new trial, which the trial court denied.  The plaintiffs then filed an appeal to the Superior Court of Pennsylvania, contending that it had been improper for the trial judge to have instructed the jury as to the defense of “Error in Judgment”.

In its opinion the Superior Court noted that the trial court had included the “Error in Judgment” defense in its instructions because under the evidence the jury could have easily concluded that Dr. Rapaport non-negligently misjudged the amount of traction he could use without injuring the child’s brachial plexis; and that Dr. Rapaport’s decision regarding how much traction to use was a medical judgment.  Thus implying that the “Error in Judgement” defense was an appropriate instruction. However, the Superior Court concluded that the “Error in Judgement” defense as described in the commonly used “Error in Judgement” instruction was inherently confusing and had no place in medical malpractice cases.  As a result, the Superior Court granted a new trial to the plaintiffs.

The affect of this Superior Court decision has been to eliminate the right of a physician in a medical malpractice case to have the court instruct the jury on the “Error in Judgment” defense.  By the Superior Court doing so, physicians have lost an important legal right that has served as a defense for physicians in medical malpractice cases since 1891. That important legal right has now been eliminated by judicial pronouncement.

Dr. Rapaport appealed the decision to the Supreme Court of Pennsylvania, but the Supreme Court declined to hear the case.  The Superior Court’s decision has now become the law of Pennsylvania.

Commentary by:

Marshall L. Grabois, Esquire

166 East Butler Avenue

Ambler, PA 19002

215-643-7866

mlg@pennagrabois.com

Disclaimer: This commentary should not be considered professional legal advice or counsel, but only as an informal discussion on a topic of general interest

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