Mistake of Judgment: Calling Out for Clarity

Mistake-of-judgment immunity has been founded on clear, unfair second-guessing of outcomes. Under the law, the existence of a bad outcome does not necessarily equate to negligence, as long as the physician accused adhered to the standard of care. However, the failure to appreciate the likelihood of a bad outcome and to “care less” about its eventuality is not judgment, but negligence.

Recent Caselaw

Recent trends in caselaw suggest that mistake-of-judgment charges are outmoded, or should be used sparingly under very limited circumstances. See Patton v. Amblo, 713 A.2d 1051, 1055 (N.J. Super. App. Div. 1998) (holding a mistake-of-judgment charge “is only appropriate, … in instances where a surgeon selects one of two courses, 'either one of which has substantial support as proper practice by the medical profession,'” citing Schueler v. Strelinger, 43 N.J. 330, 346, 204 A.2d 577 (1964) and Adams v. Cooper Hospital, 295 N.J. Super. 5, 8, 684 A.2d 506 (App. Div. 1996)).

Similarly, in Vallone v. Creech, 820 A.2d 760, 765-66 (Pa. Super. 2003), the Pennsylvania Superior Court rejected a mistake-of-judgment charge in a case alleging failure to timely diagnose a recurrence of cancer. There, the defendant physician admitted that although he believed there was a 20% chance that the cancer had recurred, he failed to confirm his suspicion until 14 months later. Id. at 763. The trial court instructed the jury that the defendant's failure to order the appropriate diagnostic testing would be negligence, but a “mere error in judgment” in failing to order the appropriate tests would not. The jury returned a verdict in favor of the defendant. The trial court concluded that the verdict was against the weight of the evidence and that the charge on mistake of judgment was erroneous. Id. at 764-65. On appeal, the Pennsylvania Superior Court affirmed, determining that the jury was thoroughly confused on the instructions given, which permitted it to choose between error in judgment or negligence in failing to order the appropriate testing. Vallone, 820 A.2d at 764-65. The court said, “We conclude the 'mere error in judgment' charge had no application to this case because it was not supported by the evidence. Given [the physician's] acknowledgment that he thought recurrence was a 20% possibility, his failure to order diagnostic testing was not a mere error in judgment. We conclude, therefore, that the post-trial motion court did not abuse its discretion when it concluded the confusing jury instructions also warranted the grant of a new trial.” Id. at 765.

Some courts have rejected the mistake-of-judgment charge outright. For instance, the court in Day v. Morrison, 657 So. 2d 808 (Miss. 1995) held, “It is undisputed that Mississippi no longer adheres to the 'mere error of judgment' standard and that the trial court misstated the law.” The Day court rejected any use of a mistake-of-judgment charge because of the potential confusion to the jury resulting from such a charge and concluded that “the phrases 'a competent physician is not liable per se for a mere error of judgment' and 'good faith error in judgment or honest error in judgment' instructions should not be given in medical negligence cases because of their potential for confusing the jury. Negligence that results in injury should support a finding of liability by a jury regardless of whether the act or omission giving rise to the injury was caused by an 'honest error in judgment.' Id. at 815. Similarly, in Mays v. Hao Chang, 213 W. Va. 220, 579 S.E.2d 561 (2003), the West Virginia Supreme Court explicitly rejected the mistake-of-judgment charge, overruling previous case law approving such an instruction; see also Hicks v. Ghaphery, 571 S.E.2d 317 (W. Va. 2002) (finding that mistake-of-judgment charge was reversible error in case involving proper treatment of motor vehicle accident victim who developed a pulmonary embolism and died).

Indeed, the Day court found company in numerous sister courts that have rejected the “mistake of judgment” charge entirely. The so-called “bona-fide” or “good-faith” judgment instruction has been soundly criticized by a number of states. The “mere error of judgment” language in an instruction has been similarly criticized and has been found in recent case law to permit too much. Riggins v. Mauriello, 603 A.2d 827, 831 (Del. Supr. 1992) (finding plain error in the court's giving such an instruction). “Under this standard, a jury could too readily conclude, incorrectly, that a physician is not liable for malpractice even if he or she is negligent in administering the treatment selected.” Id. In addition, numerous other courts have held that mere-error-of-judgment language is confusing for the jury. Riggins, 603 A.2d at 830 (citing Kobos v. Everts, 768 P.2d 534 (Wyo. Supr.1989); Leazer v. Kiefer, 120 Idaho 902, 821 P.2d 957 (1991); Logan v. Greenwich Hosp. Ass'n., 191 Conn. 282, 465 A.2d 294 (1983); Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D .Supr. 1986); Ouellette v. Subak, 391 N.W.2d 810 (Minn. Supr. 1986); Rogers v. Meridian Park Hosp., 307 Or. 612, 772 P.2d 929 (1989); Schwab v. Tolley, 345 So.2d 747 (Fla. 1977); Shamburger v. Behrens, 380 N.W.2d 659 (S.D. Supr. 1986); Sleavin v. Greenwich Gynecology and Obstetrics, 6 Conn.App. 340, 505 A.2d 436 (1986); Somer v. Johnson, 704 F.2d 1473 (11th Cir. 1983); Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984); and Watson v. McNamara, 229 Neb. 1, 424 N.W.2d 611 (1988).

In Francoeur v. Piper, 146 N.H. 525 (N.H. 2001), the New Hampshire Supreme Court considered a mistake-of-judgment charge in a case where the plaintiff alleged the physician's decision to cast plaintiff's broken ankle, allegedly leading to subsequent infection, caused plaintiff to lose her leg. The trial court gave this charge: “A mere error in judgment, made in the proper exercise of judgment, is not professional negligence.” On appeal, the plaintiff argued that this instruction, without a definition of “proper exercise of judgment,” could mislead the jury into returning a defense verdict merely because they thought he “genuinely cared” about the plaintiff. Concluding that the inclusion of this instruction was reversible error, the court noted that the instruction “improperly introduces a subjective element” into the evaluation of standard of care, which is an objective analysis. Moreover, the New Hampshire Supreme Court felt that this charge suggested that some breaches of the standard of care are too minor to be actionable.

Pennsylvania's Experience

The Pennsylvania authorities who revised the Pennsylvania Standard Civil Jury Instructions in 2003 thought it wise of late to reject the confusing mistake-of-judgment charge. In the note to ' 10.03 of the Pennsylvania Standard Civil Jury Instructions, the authors concluded, “[S]uch phrase[s], at worst, risk misstating the law. At best, they seem unnecessarily circular in form. In any event, such language seems more likely to mislead and confuse the jury rather than enlighten it. For these reasons, the subcommittee does not include any language regarding professional judgment in the foregoing instruction.” Subcommittee Note, Standard of Care-Physicians (Pa. SSJI (Civ.) ' 10.03A), January 2003.

Despite harsh criticisms in the past, Pennsylvania trial courts continue to use – and at times misuse – the mistake-of-judgment charge in medical malpractice cases. As a judicial example of the potential confusion and abuse related to this instruction, the Pennsylvania Superior Court has recently published the case of Schaaf v. Kaufman, 2004 Pa. Super 129 (Pa. Super April 22, 2004). Schaaf involved an allegation that the defendant failed to recognize plaintiff's decedent's atrial fibrillation, and, as a result, failed to take appropriate stroke prevention measures. Defense experts testified that the defendant doctor acted properly at all times, and the jury agreed, returning a defense verdict. The court held that the trial judge did not commit error when he instructed the jury by giving the following charge: “Professional negligence consists of a careless or unskilled performance by a physician of the duties imposed on him or her by their professional relationship with their patient. It is also negligence when a physician shows a lack of proper care, evaluation and skill in the performance of a professional act. However, doctors are not liable for mistakes or errors in judgment, nor do they guarantee a result.” On appeal, there was a failure of analysis on the issue – both by the court and by the appellant. Plaintiff did not challenge the sufficiency of the evidence to evoke a mistake-of-judgment charge, but only argued that the jury charge was misleading without further clarification.

The Superior Court disagreed with plaintiff that the trial judge's instruction was confusing without additional instructions, holding the trial judge's instruction as a whole explains that physicians “are liable if they deviate from the standard of care, but if a judgment turns out to be wrong, the doctor cannot automatically be found negligent.” The court provided no analysis to identify the “judgment” allegedly at issue, and lumped together — without explanation — the different concept of “no inference of negligence from a bad outcome.” By failing to parse out critical concepts contained in the charge, the court shirked its responsibility to guide the jury through its deliberations.

Conclusion

The burden-of-proof charge addresses the urge to blame a bad outcome on the doctor, even in the absence of causal negligence. The standard-of-care instructions lead the fact-finder to describe the conduct of a responsible physician under like circumstances in trying to reach a verdict. It is only the rare setting where the diagnosis of disease process under obscure circumstances requires evoking a physician's defense of judgment. Otherwise, the exception supplants the rule and every act of a caring physician will be cloaked in “professional judgment.”

Mistakes-of-judgment charges are appropriate only under particular circumstances, such as in a failure-to-diagnose case, where the health care provider must make a choice between two equally appropriate possibilities, ie a question about whether a patient's uneven shoulders represent poor posture or scoliosis of the spine. See, eg Nestorowich v. Ricotta, 97 N.Y.2d 393 (N.Y. 2002) (citing Oelsner v. State, 66 N.Y.2d 636, 637 (N.Y. 1985), a case involving alleged negligence in diagnosing salicylate poisoning, as an appropriate situation for the mistake-of-judgment charge). As long as the physician follows the standard of care in making such a determination, he or she is not negligent, even if the determination later turns out to be wrong. If the physician fails to adhere to the appropriate standard of care — including use of appropriate scientific tests to make a diagnosis — then he or she has committed negligence. Under these circumstances, a concise, carefully crafted mistake-of-judgment charge, which factually identifies the “judgment” at issue, would be of assistance to the jury, and should be a mandate for the charge to be given.

In contrast, in cases involving an allegation that the defendant physician failed to treat properly, the mistake-of-judgment charge is inappropriate and should not be read to the jury. Although plaintiff's experts and defense experts may disagree about the appropriate standard of care, and whether the defendant's actions conformed to that standard of care, there is no “professional judgment” at issue. The jury is charged with identifying the appropriate standard of care and evaluating whether the defendant breached that standard of care. The existence of a disagreement between experts does not artificially create a “judgment,” nor does a physician's choice to act outside the standard of care, however well-meaning, warrant a mistake-of-judgment charge. The mistake-of-judgment charge is appropriate only if the facts are such that a health care provider can choose between two equally acceptable options, both within the applicable standard of care.

Courts across the country have identified serious concerns with the unadulterated use of the mistake-of-judgment charge. Injudicious use of the charge may result in jury confusion and inappropriate application to cases involving treatment choices below the standard of care. In order to obtain a balance between the protection of doctors' professional judgment and the vindication of plaintiffs injured by professional negligence, application of the mistake-of-judgment rule must be limited to failure-to-diagnose cases, the instructions must be clearly and carefully tailored to identify the “judgment” at issue, and the charge must be clarified using language explaining the difference between an appropriate exercise of judgment and a negligent failure to secure an adequate factual basis upon which to support the caregiver's diagnosis.

In medical malpractice cases, it is a matter of hornbook law that health care providers bear no liability for poor outcomes resulting from the exercise of professional judgment, as long as they adhere to the relevant standard of care. In an attempt to facilitate jurors' understanding of this concept, courts across the country have given “mistake” or “error-of-judgment” charges, which typically instruct the jury that physicians are entitled to exercise their professional judgment in choosing either of two reasonable options.

Originally, mistake-of-judgment charges were given in failure-to-diagnose cases where parties presented evidence about the existence of two or more equally viable alternatives for treatment or diagnosis. See Nestorowich v. Ricotta , 97 N.Y.2d 393, 400 (N.Y. 2002). This benign and legally appropriate charge has at times been manipulated into an exculpatory instruction for professional malfeasance, and is offered even in cases where the alleged negligence did not involve an error in judgment, but rather an error in the mechanism of treatment. See Nestorowich (discussing mistake-in-judgment charge erroneously given in case where the alleged negligence was a physician's mistake in ligating a renal artery that he thought was a vessel supplying blood to plaintiff's tumor). Defense attorneys often attempt to use the rule as a talisman throughout the case, masking professional negligence underneath the guise of professional judgment. See, e.g. Das v. Thani , 171 N.J. 518, 528-29, 795 A.2d 876, 883 (“Defense counsel, 'knowing the power of the judgment charge, took every opportunity to lead the court and jury into thinking that the entire case revolved around the exercise of judgment'.”).

As courts across the country have come to recognize, mistake-of-judgment instructions can be abused, and not all medical decision-making should qualify as “judgment calls.” For instance, in Havasy v. Resnick , 609 A.2d 1326, 1336 (Pa. Super. 1992), the Pennsylvania Superior Court held, “[The law] is not to say that a physician cannot be liable for a mistake of judgment or misdiagnosis. He is clearly liable if his mistake reflects a failure to follow proper practice and thereby violates the standard of care required of physicians. Id. (Emphasis added).

Mistake-of-judgment immunity has been founded on clear, unfair second-guessing of outcomes. Under the law, the existence of a bad outcome does not necessarily equate to negligence, as long as the physician accused adhered to the standard of care. However, the failure to appreciate the likelihood of a bad outcome and to “care less” about its eventuality is not judgment, but negligence.

Recent Caselaw

Recent trends in caselaw suggest that mistake-of-judgment charges are outmoded, or should be used sparingly under very limited circumstances. See Patton v. Amblo , 713 A.2d 1051, 1055 (N.J. Super. App. Div. 1998) (holding a mistake-of-judgment charge “is only appropriate, … in instances where a surgeon selects one of two courses, 'either one of which has substantial support as proper practice by the medical profession,'” citing Schueler v. Strelinger , 43 N.J. 330, 346, 204 A.2d 577 (1964) and Adams v. Cooper Hospita l, 295 N.J. Super. 5, 8, 684 A.2d 506 (App. Div. 1996)).

Similarly, in Vallone v. Creech , 820 A.2d 760, 765-66 (Pa. Super. 2003), the Pennsylvania Superior Court rejected a mistake-of-judgment charge in a case alleging failure to timely diagnose a recurrence of cancer. There, the defendant physician admitted that although he believed there was a 20% chance that the cancer had recurred, he failed to confirm his suspicion until 14 months later. Id. at 763. The trial court instructed the jury that the defendant's failure to order the appropriate diagnostic testing would be negligence, but a “mere error in judgment” in failing to order the appropriate tests would not. The jury returned a verdict in favor of the defendant. The trial court concluded that the verdict was against the weight of the evidence and that the charge on mistake of judgment was erroneous. Id. at 764-65. On appeal, the Pennsylvania Superior Court affirmed, determining that the jury was thoroughly confused on the instructions given, which permitted it to choose between error in judgment or negligence in failing to order the appropriate testing. Vallone, 820 A.2d at 764-65. The court said, “We conclude the 'mere error in judgment' charge had no application to this case because it was not supported by the evidence. Given [the physician's] acknowledgment that he thought recurrence was a 20% possibility, his failure to order diagnostic testing was not a mere error in judgment. We conclude, therefore, that the post-trial motion court did not abuse its discretion when it concluded the confusing jury instructions also warranted the grant of a new trial.” Id. at 765.

Some courts have rejected the mistake-of-judgment charge outright. For instance, the court in Day v. Morrison , 657 So. 2d 808 (Miss. 1995) held, “It is undisputed that Mississippi no longer adheres to the 'mere error of judgment' standard and that the trial court misstated the law.” The Day court rejected any use of a mistake-of-judgment charge because of the potential confusion to the jury resulting from such a charge and concluded that “the phrases 'a competent physician is not liable per se for a mere error of judgment' and 'good faith error in judgment or honest error in judgment' instructions should not be given in medical negligence cases because of their potential for confusing the jury. Negligence that results in injury should support a finding of liability by a jury regardless of whether the act or omission giving rise to the injury was caused by an 'honest error in judgment.' Id. at 815. Similarly, in Mays v. Hao Chang , 213 W. Va. 220, 579 S.E.2d 561 (2003), the West Virginia Supreme Court explicitly rejected the mistake-of-judgment charge, overruling previous case law approving such an instruction; see also Hicks v. Ghaphery , 571 S.E.2d 317 (W. Va. 2002) (finding that mistake-of-judgment charge was reversible error in case involving proper treatment of motor vehicle accident victim who developed a pulmonary embolism and died).

Indeed, the Day court found company in numerous sister courts that have rejected the “mistake of judgment” charge entirely. The so-called “bona-fide” or “good-faith” judgment instruction has been soundly criticized by a number of states. The “mere error of judgment” language in an instruction has been similarly criticized and has been found in recent case law to permit too much. Riggins v. Mauriello , 603 A.2d 827, 831 (Del. Supr. 1992) (finding plain error in the court's giving such an instruction). “Under this standard, a jury could too readily conclude, incorrectly, that a physician is not liable for malpractice even if he or she is negligent in administering the treatment selected.” Id. In addition, numerous other courts have held that mere-error-of-judgment language is confusing for the jury. Riggins , 603 A.2d at 830 (citing Kobos v. Everts , 768 P.2d 534 (Wyo. Supr.1989); Leazer v. Kiefer , 120 Idaho 902, 821 P.2d 957 (1991); Logan v. Greenwich Hosp. Ass'n., 191 Conn. 282, 465 A.2d 294 (1983); Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D .Supr. 1986); Ouellette v. Subak , 391 N.W.2d 810 (Minn. Supr. 1986); Rogers v. Meridian Park Hosp., 307 Or. 612, 772 P.2d 929 (1989); Schwab v. Tolley , 345 So.2d 747 (Fla. 1977); Shamburger v. Behrens , 380 N.W.2d 659 (S.D. Supr. 1986); Sleavin v. Greenwich Gynecology and Obstetrics , 6 Conn.App. 340, 505 A.2d 436 (1986); Somer v. Johnson , 704 F.2d 1473 (11th Cir. 1983); Wall v. Stout , 310 N.C. 184, 311 S.E.2d 571 (1984); and Watson v. McNamara , 229 Neb. 1, 424 N.W.2d 611 (1988).

In Francoeur v. Piper , 146 N.H. 525 (N.H. 2001), the New Hampshire Supreme Court considered a mistake-of-judgment charge in a case where the plaintiff alleged the physician's decision to cast plaintiff's broken ankle, allegedly leading to subsequent infection, caused plaintiff to lose her leg. The trial court gave this charge: “A mere error in judgment, made in the proper exercise of judgment, is not professional negligence.” On appeal, the plaintiff argued that this instruction, without a definition of “proper exercise of judgment,” could mislead the jury into returning a defense verdict merely because they thought he “genuinely cared” about the plaintiff. Concluding that the inclusion of this instruction was reversible error, the court noted that the instruction “improperly introduces a subjective element” into the evaluation of standard of care, which is an objective analysis. Moreover, the New Hampshire Supreme Court felt that this charge suggested that some breaches of the standard of care are too minor to be actionable.

Pennsylvania's Experience

The Pennsylvania authorities who revised the Pennsylvania Standard Civil Jury Instructions in 2003 thought it wise of late to reject the confusing mistake-of-judgment charge. In the note to ' 10.03 of the Pennsylvania Standard Civil Jury Instructions, the authors concluded, “[S]uch phrase[s], at worst, risk misstating the law. At best, they seem unnecessarily circular in form. In any event, such language seems more likely to mislead and confuse the jury rather than enlighten it. For these reasons, the subcommittee does not include any language regarding professional judgment in the foregoing instruction.” Subcommittee Note, Standard of Care-Physicians (Pa. SSJI (Civ.) ' 10.03A), January 2003.

Despite harsh criticisms in the past, Pennsylvania trial courts continue to use – and at times misuse – the mistake-of-judgment charge in medical malpractice cases. As a judicial example of the potential confusion and abuse related to this instruction, the Pennsylvania Superior Court has recently published the case of Schaaf v. Kaufman, 2004 Pa. Super 129 (Pa. Super April 22, 2004). Schaaf involved an allegation that the defendant failed to recognize plaintiff's decedent's atrial fibrillation, and, as a result, failed to take appropriate stroke prevention measures. Defense experts testified that the defendant doctor acted properly at all times, and the jury agreed, returning a defense verdict. The court held that the trial judge did not commit error when he instructed the jury by giving the following charge: “Professional negligence consists of a careless or unskilled performance by a physician of the duties imposed on him or her by their professional relationship with their patient. It is also negligence when a physician shows a lack of proper care, evaluation and skill in the performance of a professional act. However, doctors are not liable for mistakes or errors in judgment, nor do they guarantee a result.” On appeal, there was a failure of analysis on the issue – both by the court and by the appellant. Plaintiff did not challenge the sufficiency of the evidence to evoke a mistake-of-judgment charge, but only argued that the jury charge was misleading without further clarification.

The Superior Court disagreed with plaintiff that the trial judge's instruction was confusing without additional instructions, holding the trial judge's instruction as a whole explains that physicians “are liable if they deviate from the standard of care, but if a judgment turns out to be wrong, the doctor cannot automatically be found negligent.” The court provided no analysis to identify the “judgment” allegedly at issue, and lumped together — without explanation — the different concept of “no inference of negligence from a bad outcome.” By failing to parse out critical concepts contained in the charge, the court shirked its responsibility to guide the jury through its deliberations.

Conclusion

The burden-of-proof charge addresses the urge to blame a bad outcome on the doctor, even in the absence of causal negligence. The standard-of-care instructions lead the fact-finder to describe the conduct of a responsible physician under like circumstances in trying to reach a verdict. It is only the rare setting where the diagnosis of disease process under obscure circumstances requires evoking a physician's defense of judgment. Otherwise, the exception supplants the rule and every act of a caring physician will be cloaked in “professional judgment.”

Mistakes-of-judgment charges are appropriate only under particular circumstances, such as in a failure-to-diagnose case, where the health care provider must make a choice between two equally appropriate possibilities, ie a question about whether a patient's uneven shoulders represent poor posture or scoliosis of the spine. See, eg Nestorowich v. Ricotta , 97 N.Y.2d 393 (N.Y. 2002) (citing Oelsner v. State , 66 N.Y.2d 636, 637 (N.Y. 1985), a case involving alleged negligence in diagnosing salicylate poisoning, as an appropriate situation for the mistake-of-judgment charge). As long as the physician follows the standard of care in making such a determination, he or she is not negligent, even if the determination later turns out to be wrong. If the physician fails to adhere to the appropriate standard of care — including use of appropriate scientific tests to make a diagnosis — then he or she has committed negligence. Under these circumstances, a concise, carefully crafted mistake-of-judgment charge, which factually identifies the “judgment” at issue, would be of assistance to the jury, and should be a mandate for the charge to be given.

In contrast, in cases involving an allegation that the defendant physician failed to treat properly, the mistake-of-judgment charge is inappropriate and should not be read to the jury. Although plaintiff's experts and defense experts may disagree about the appropriate standard of care, and whether the defendant's actions conformed to that standard of care, there is no “professional judgment” at issue. The jury is charged with identifying the appropriate standard of care and evaluating whether the defendant breached that standard of care. The existence of a disagreement between experts does not artificially create a “judgment,” nor does a physician's choice to act outside the standard of care, however well-meaning, warrant a mistake-of-judgment charge. The mistake-of-judgment charge is appropriate only if the facts are such that a health care provider can choose between two equally acceptable options, both within the applicable standard of care.

Courts across the country have identified serious concerns with the unadulterated use of the mistake-of-judgment charge. Injudicious use of the charge may result in jury confusion and inappropriate application to cases involving treatment choices below the standard of care. In order to obtain a balance between the protection of doctors' professional judgment and the vindication of plaintiffs injured by professional negligence, application of the mistake-of-judgment rule must be limited to failure-to-diagnose cases, the instructions must be clearly and carefully tailored to identify the “judgment” at issue, and the charge must be clarified using language explaining the difference between an appropriate exercise of judgment and a negligent failure to secure an adequate factual basis upon which to support the caregiver's diagnosis.